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I 


ON 


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CIVIL LIBERTY 


AND 






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SELF-GOVERNMENT. 


y 

BY FEANCIS LIBBEE, LL.D., 

C. M. FRENCH INSTITUTE, ETC. 

AUTHOR OF POLITICAL ETHICS;” “ PRINCIPLES OF LEGAL AND POLITICAL INTERPRETATION;” 
ESSAYS ON LABOR AND PROPERTY;” ‘‘ON CRIMINAL LAVT;” “REMINISCENCES OF 
NIEBUHR;” EDITOR OF “PENITENTIARY SYSTEM IN THE UNITED STATES 
BY DE BEAUMONT AND DE TOCQUEVILLE,” ETC. ETC. 

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IN TWO VOLUMES. 

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VOL. I. 


PHILADELPHIA, 
LIPPINCOTT, GRAMBO AND CO. 

MDCCCLIII. 


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Entered according to the Act of Congress, in the year 1863, by 
FRANCIS LIBBER, 

in the Office of the Clerk of the District Court of the United States in and for 
the Eastern District of Pennsylvania. 


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TO 

HIS FOKMER PUPILS 

THESE VOLUMES 

ARE 

INSCRIBED, 

IN KIND REMEMBRANCE, 


BY THE AUTHOR. 









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1 • 





TO MY FOEMEE PUPILS. 


Gentlemen, 

There are now in different portions of this country 
not far from a thousand citizens in the formation of 
whose minds I have had some share as a teacher. 
Many of you are in places of authority, and I con¬ 
sider myself more fortunate than the great founder 
of political science in this, that Aristotle taught a 
royal youth and future conqueror, and Athenians 
indeed, but at a period when the sun of Greece was 
setting, while my lot has been to instruct the future 
law-^33akers of a vast and growing commonwealth in 
the noblest branches that can be imparted to the 
minds of youths preparing themselves for the citizen¬ 
ship of a great republic. I have taught you in the 
early part of our history which God has destined to 
fill a fair page in the annals of man if we do our 
arduous duty. If not, our shame will be propor¬ 
tionate. He never holds out high rewards without 
corresponding penalties. 

When you were members of this institution, I led 
you through the history of man, of rising and of ebb- 
1 * 



vi TO FORMER PUPILS. 

ing civilization, of freedom, despotism, and anarchy. 
I have taught you how men are destined to be pro¬ 
ducers and exchangers, how wealth is gathered and 
lost; and how, without it, there can be no progress 
and no culture. I have studied, with many of you, 
the ethics of states and of political man. You can 
bear me witness that I have endeavored to convince 
you of man’s inextinguishable individuality, and of 
the organic nature of society; that there is no right 
without a parallel duty, no liberty without the 
supremacy of the law, and no high destiny without 
earnest perseverance—that there can be no greatness 
without self-denial.* 

Through you my life and name are linked to the 
republic, and it seems natural that I should dedicate 
to you a work intended to complete that part of 
my Political Ethics which touches more especially 
on liberty. You will take it as the gift of a friend, 
and will allow it kindly to remind you of that 
room where you were accustomed to sit before your 
teacher, with the busts of Washington, Socrates, 
Shakspeare, and other laborers in the vineyard of 
humanity, looking down upon us. 

The suffrages of your fellow-citizens have carried 


* For other readers it may be mentioned that the writer is Pro¬ 
fessor of History and of Political Philosophy and Economy in the 
State College of South Carolina. 



TO MY FORMER PUPILS. . * vii 

many of yon into the legislative halls of our con¬ 
federated states; a few of you are clothed with 
their chief authority, or have risen to the bench; 
others have seats in our congress; some have be¬ 
come teachers of the young; some labor in the 
church. Many of you are at home, and near at 
hand; some are on the shores of the Pacific, or in 
foreign lands. Wherever this book may reach you, 
in whatever sphere of duty it may find you occupied, 
receive it as a work earnestly intended to draw 
increased attention to the great argument of our 
times. 

Our age has added new and startling commentaries 
to many subjects discussed in the Political Ethics, 
and things there spoken of as probably passed all 
recurrence have since burst upon an amazed world. 
We would never have supposed that socialism and 
despotism, the fatal negations of freedom, could have 
been boldly proclaimed in this century as the defence 
and refuge of humanity. We could never have 
believed possible such a waste of national zeal 
within so short a period, as we have witnessed in 
Italy and Germany—countries that are endeared to 
every civilized man. 

A large part of Europe is in a state of violence, 
either convulsive action or enforced repose, and one 
of the greatest nations has apparently once more 


TO MY FOKMER PUPILS. 


viii 

sought refuge in the reminiscences of the saddest 
times of Rome. History often reaches our shores 
from that portion of the globe by entire chapters. 
We are necessarily affected by new events and new 
ideas, as we in turn influence Europe; for we are 
of kindred blood, of one Christian faith, of similar 
pursuits and civilization; we have one science and 
the same arts; we have one Qommon treasure of 
knowledge and power; our alphabet and our numeric 
signs are the same; and we are members of one 
family of advanced nations. In such times it be¬ 
hooves us to keep a steady eye on all the signs of 
the times. Let us be a^ttentive; let us understand. 
Goethe says truly that we must learn to read occa¬ 
sionally between the lines of books in order to 
understand them. It is a remark which applies with 
still greater force to the pages of history and those 
that record the changes of our own days. 

You live in an energetic age. Men are intently 
bent on bold and comprehensive- ends, and mischief 
is pursued with similar activity. The calling of our 
inter-oceanic country is a solemn one; the youngest 
nation shall bind the old to the oldest, and the 
Pacific shall unite, though the narrow Bosphorus 
has long divided. Your institutions come from the 
freest nation of ancient and venerable Europe— 
and your duties are proportionate to the blessings 


TO MY FORMER PUPILS- 


IX 


you are enjoying. The period we live in, our coun¬ 
try’s position and youth^ our abundance of land, 
our descent, and our freedom—all call upon us, and 
warn us. 

If this work then aid, in ever so slight a degree, 
in the discharge of these high duties; if it help to 
show that the political and national Know Thyself 
is as important as the individual; if it impress more 
forcibly upon your minds the advice of Pliny: Habe 
ante oculos hanc esse terrain quae nobis miserit jura, 
and give it a meaning far wider than that which the 
Roman could give to it; if it prove an additional 
incentive to hold fast to our liberty and to cultivate 
it with fresh purity of purpose; if it increase our 
love of sterling action and disdain of self-praise; if 
it tend to confirm civil fortitude, that virtue which 
is acquired by the habit of at once obeying and 
insisting upon the laws of a free country, and shows 
itself most elevated when it resists alluring excite¬ 
ment; if, in some measure, it serve to restrain us 
from exaggeration and judging by plausibility—two 
faults that are rifer in our age than they have been 
almost at any other period; if it steady the reader 
against that enthusiasm which Wesley designates as 
“ the looking to the end without the means if it 

* General Minutes, appended to his edition of the Book of 
Common Prayer, for the American Methodists. 



X 


TO MY FORMER PUPILS. 


deepen onr abhorrence of all absolutism, whether it 
be individual or collective, and by whatever name it 
may be called; and if it strengthen our conviction 
of the dignity of man, too feeble to wield unlimited 
power and too noble to submit to it—then indeed I 
shall be richly rewarded, and shall not consider my¬ 
self too bold if I point to you as Epaminondas, in 
his dying hour, pointed to Leuctra and Mantinea.* 

L. 


Columbia, S. C., July, 1853. 


* Diodor. Sic. L. xv. c. 87, 6. 



CONTENTS 


VOLUME I 


CHAPTER I. 


Inthoductory . 


• • 


• • 


CHAPTER IL 


Definitions of liberty 


• • 


• • 


CHAPTER III. 

TuE 3IEANING OF CIVIL LIBERTY. 

CHAPTER IV. 

Ancient and modern liberty. Ancient, medieval, and 

MODERN STATES . 


« • 


CHAPTER V. 


Anglican liberty 


CHAPTER VI. 

National independence. Personal liberty . 


CHAPTER VIL 


PAGE 

25 

32 

48 

58 

68 

73 


Bail. Penal trial 


85 



CONTENTS, 


xii 

^ CHAPTER VIIL 

, ' . _ PAGE 

Iliail TREASON . .... . . • * • 

CHAPTER IX. 

Communion. Locomotion, emigration . ^ . . • 108 

CHAPTER X. 

Liberty of conscience. Property. Supremacy of the 

LAW.118 

CHAPTER XL 

Quartering soldiers. The army.135 

CHAPTER XII. 

Petition. Association . . . . . . . 144 

CHAPTER XIII. 

Publicity.149 

CHAPTER XIV. 

Supremacy of the law. Taxation. Division of power . 158 

CHAPTER XV. 

Responsible ministers. Courts declaring laws uncon¬ 
stitutional. Representative government . . 175 

CHAPTER XVI. 

Representative government continued. Basis of pro¬ 
perty. Direct and indirect elections . . . 188 

CHAPTER XVII. 

Parliamentary law and usage. The speaker. Two 

HOUSES. The veto. . . . . . . .199 




CONTENTS. 

V 

CHAPTER XVIIL 

Independence of the judiciary, the law, jus, common 

li ^ W •••••••••• 

CHAPTER XIX. 

» 

Independence of jus, self-development of law con¬ 
tinued. Accusatorial and inquisitorial trials. In¬ 
dependence OF THE judge . . ' . 

CHAPTER XX. 

Independence of jus, continued. Trial by jury. The 
Advocate ......... 

CHAPTER XXL 

Self-government. 

CHAPTER XXII. 

American liberty. 

CHAPTER XXII. 

In what civil liberty consists, proved by contraries . 

CHAPTER XXIII. 

Gallican liberty. Spreading of liberty 

CHAPTER XXIV. 

The institution. Its definition. Its power for good 

AND EVIIj *•••••••« 


CHAPTER XXVI. - 

The institution continued. Institutional liberty. In 

STITUTIONAL LOCAL SELF-GOVERNMENT 


Xlll 


PAGK 

220 . 


234 


250 


267 


277 


287 


298 


320 


845 


VOL. I.— 2 


XIV 


CONTENTS, 




VOLUME II. 

CHAPTER XXVII. 

Effects and uses of institutional self-goveenment 

CHAPTER XXVIII. 

Dangers and inconveniences of institutional self-go¬ 
veenment .. . 


CHAPTER XXIX. 

Advantages of institutional government, farther con- 

SXDfiXtSD ••••••••• 


CHAPTER XXX. 

Institutional government the only government which 

PREVENTS THE GROWTH OF TOO MUCH POWER. LIBERTY, 
WEALTH AND LONGEVITY OF STATES. 

CHAPTER XXXI. 

Insecurity of uninstitutional governments. Unorgan¬ 
ized, INARTICULATED POPULAR POWER .... 

CHAPTER XXXII. 

Imperatorial sovereignty .. 

CHAPTER XXXIII. 

Imperatorial sovereignty continued. Its origin and 


PAGE 

13 


29 


43 


57 


64 


77 


CHARACTER EXAMINED 


86 


CONTENTS. 


XV 


CHAPTER XXXTV. 

PARE 

Centralization. Influence of capital cities . . 97 

CHAPTER XXXV. 

Vox PoPULi Vox Dei.107 


APPENDIX.- 

s 

APPENDIX I. 

A PAPER ON ELECTIONS, ELECTION STATISTICS AND GENERAL 

VOTES OF YES OR NO. 123 

APPENDIX II. 

A PAPER ON THE ABUSE OF THE PARDONING POWER . . 144 

APPENDIX III. 

A PAPER ON SUBJECTS CONNECTED WITH THE INQUISITORIAL 

TRIAL AND THE LAWS OF EVIDENCE . . . . . 1G9 

APPENDIX IV. 

Magna charta of king John. 178 

APPENDIX V. 


The petition of Rights . 


202 



XVI 


CONTENTS. 


APPENDIX VI. 

An act for the better securing the liberty of the sub¬ 
ject, AND FOR PREVENTION OF IMPRISONMENTS BEYOND THE 
SEAS, COMjVfONLY CALLED “THE HABEAS CORPUS ACT” 

APPENDIX VII. 

Bill of rights, passed 1 William and Mary, sess. 2, cii. 
2, 1G89. 


APPENDIX VIII. 

A declaration BY THE REPRESENTATIVES OF THE UNITED 
States of America, in congress assembled 

APPENDIX IX. 

Articles of confederation and perpetual union between 
THE states . 

APPENDIX X. 

Constitution of the United States of America 

APPENDIX XI. 

French charter of Louis XVIII. and that adopted in 

THE YEAR 1830 . . . . . . . 


APPENDIX XII. 

Constitution of the Fbench republic 

APPENDIX XIII. 


PAGE 

209 

221 

( 

228 

235 

249 

2G8 

281 


The present constitution of France 


301 


/ 


V 


CONTENTS. 


APPENDIX XIV. 

Report of the French senatorial committee on the 

PETITIONS TO CHANGE THE REPUBLIC INTO AN EMPIRE, IN 

November, 1852, and the senates consultum adopted 

IN CONFORMITY WITH IT. 

V 

APPENDIX XV. 

Letter of the French minister of the interior, Mr. De 
Morny, addressed to the prefects of the depart¬ 
ments IN THE YEAR 1852 . 


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xvii 


PAGE 


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CIVIL LIBEETY 


AND 

SELF-GOVERNMENT. 



CHAPTEK I. 


INTRODUCTORY. 

We live at a period when it is the duty of reflect¬ 
ing men to ponder conscientiously these important 
questions: In what does civil liberty consist ? How 
is it maintained ? What are its means of self-diffu¬ 
sion, and under what forms do its chief dangers 
present themselves ? 

Our age, marked by restless activity in almost all 
departments of knowledge, and by struggles and 
aspirations before unknown, is stamped by no cha¬ 
racteristic more deeply than by a desire to establish 
or extend freedom among the political societies of 
mankind. At no previous period, ancient or mo¬ 
dern, has this impulse been felt at once so strongly 
and by such extensive numbers. The love of civil 
liberty is so leading a motive in our times, that no 
man who does not understand what civil liberty is, 
has acquired that self-knowledge without which we 
do not know where we stand, and are supernume¬ 
raries, or merely instinctive followers rather than 
conscious, working members of our race, in our day 
and generation. 

The first half of our century has produced more 

VOL. I.—3 


26 


ON CIVIL LIBERTY 


than three hundred political constitutions, some few 
of substance and sterling worth, many transient like 
ephemeral beings, but all of them testifying to the 
endeavors of our age, and plainly pointing out the 
high problem that must be solved; many of them 
leaving roots in despite of their short existence, 
which some day will sprout and prosper. It is in 
history as in nature. Of all the seeds that germi¬ 
nate, but few grow up to be trees, and of all the 
millions of blossoms, but few ripen into fruit. 

Changes, frequently far greater than are felt by 
those who stand in the midst of them, have taken 
place; violent convulsions have shaken large and 
small countries, and blood has been shed. Blood 
has always flowed before great ideas could settle 
into actual institutions, or before the yearnings of 
humanity could become realities. Every marked 
struggle in the progress of civilization has its period 
of convulsion. Our race is in that period now, and 
thus our times resemble the epoch of the reforma¬ 
tion. 

Many who unreservedly adhere to the past, or 
who fear its evils less than those of change, resist 
the present longings of our kind, and seem to forget 
that change is always going on, Avhether we will or 
not. States consist of living beings, and life is change. 
Others seem to claim a right of revolution for govern¬ 
ments, denying it to the people, and large portions of 
the people have overleaped civil liberty itself. They 
daringly disavow it, and pretend to believe that 
they find the solution of the great problem of our 
times either in an annihilation of individuality, or 


AND SELF-GOVERNMENT. 


27 


in an apotheosis of individnal man, and preach 
communism, individual sovereignty, or the utmost 
concentration of all power and political action in one 
Caesar. “Parliamentary liberty” is a term sneeringly 
used in whole countries to designate what they con¬ 
sider an obsolete encumbrance and decaying rem¬ 
nants of a political phase belonging to the past. The 
representative system is laughed at, and the idol of 
monarchical or popular absolutism is draped anew, 
and worshipped by thousands as if it were the latest 
avatar of their political god. 

We must find our way through these mazes. 
This is one of our duties, because it has pleased 
Providence to cast our lot in the middle of the 
nineteenth century, and because an earnest man 
ought to know, above all social things, his own 
times. 

Besides these general considerations, weighty as 
they are, there are others which press more imme¬ 
diately upon ourselves. Most of us descend in 
blood, and all of us politically, from that nation to 
which has been assigned in common with ourselves 
the high duty of developing modern civil liberty, 
and whose manliness and wisdom, combined with a 
certain historical good fortune, which enabled it to 
turn to advantage elements that proved sources of 
evil elsewhere, have saved it from the blight of 
absorbing centralization. England was the earliest 
country to put an end to feudal isolation, while still 
retaining independent institutions, and to unite the 
estates into a powerful general parliament, able to 
protect the nation against the crown. There, too, 


28 


ON CIVIL LIBERTY 


centuries ago, trials for higli treason were surronnded 
with peculiar safeguards, besides • those known in 
common criminal trials, in favor of the accused, an 
exception the very reverse of Avhich we observe in 
all other European countries down to the most 
recent times, and in most to this day. In England, 
we first see applied in practice and on a grand scale, 
the idea which came originally from the Netherlands, 
that liberty must not be a boon of the government, 
but that government must derive its rights from the 
people. Here, too, the people always clung to 
the right to tax themselves, and here, from the 
earliest times, the administration of. justice has 
been separated from the other functions of govern¬ 
ment and devolved upon magistrates set apart for 
this end, a separation not yet found in all countries.^ 
In England, power of all kind, even of the crown, has 
ever bowed, at least theoretically, to the supremacy 
of the law,^ and that country may claim the imperish- 


’ I do not only allude to such bodies as the French parliaments, 
but to the fact that down to this century the continental courts of 
justice conducted, in innumerable cases, what is now frequently 
called the administrative business, such as collecting taxes, letting 
crown domains, superintending roads and bridges. The early 
separation of the English judge—I do not speak of his independ¬ 
ence, which is of much later date—and the early, comparatively 
speaking, independent position of the English church, seem to me 
two of the most significant facts in English history. 

2 Even a Henry the Eighth took care to have first the law changed 
when it could not be bent to his tyrannical acts. Despots in other 
countries did not take this trouble, and I do not know whether the 
history of any other period impresses the student with that pecu¬ 
liar meaning which the English Avord Law has acquired, more forci¬ 
bly than this very reign of tyranny and royal bloodshed. 



AND SELF-GOVEKNMENT. 


29 


able glory of having formed a national representative 
system of two houses, governed by a parliamentary 
law of their own, with that important element, at once 
conservative and progressive, of a lawful, loyal op¬ 
position. It is that country which alone saved judi¬ 
cial and political publicity, when secrecy prevailed 
everywhere else; which retained a self-developing 
common law and established the trial by jury. In 
England, the principles of self-government were not 
swept away, and all the chief principles and guaran¬ 
tees of her great charter and the petition of rights 
have passed over into our constitutions. 

AVe belong to the Anglican tribe, which carries 
Anglican principles and liberty over the globe, 
because wherever it moves liberal institutions and a 
common law full of manly rights and instinct with 
the principle of an expansive life accompany it. We 
belong to that race whose obvious task it is among 
other proud and sacred tasks, to rear and spread civil 
liberty over vast regions in every part of the earth, 
on continent and isle. We belong to that tribe 
which alone has the word Self-Government. We 
belong to that nation whose great lot it is to be 
placed with the full inheritance of freedom on the 
freshest soil, in the noblest site, between Europe and 
Asia, a nation young, wdiose kindred countries, 
powerful in wealth, armies, and intellect, are old. 
It is a period when a peaceful migration of nations, 
similar in the weight of numbers to the warlike 
migration of the early middle ages, pours its crowd 
into the lap of our more favored land, there to try 
and at times to test to the utmost our institutions— 
3 * 


30 


ON CIVIL LIBERTY 


institutions wliicli are our foundations and buttresses, 
as the law wliicli tliey embody and organize is our 
sole and sovereign master. 

These are the reasons why it is incumbent upon 
every American again and again to present to his 
mind what his own liberty is, how he must guard 
and maintain it, and why, if he neglect it, he resem¬ 
bles the missionary that should proceed to convert 
the world without bible or prayer-book. These are^ 
the reasons why I feel called upon to write this 
work in addition to what I have given long ago in 
another place on the subjects of Justice, Law, the 
State, Liberty and Kight,^ and to Avhich, therefore, I 
must refer my reader for many preliminary particu¬ 
lars ; and these, too, are the reasons why I ask for 
an attention, corresponding to the sense of respon¬ 
sibility with which I approach the great theme of 
political vitality—the leading subject of western 
history"* and the characteristic stamp and feature of 
our tribe, our age, our own country and its calling. 

3 In my Political Ethics. 

I ask permission to draw the attention of the scholar to a sub¬ 
ject which appears to me important. I have used the term West¬ 
ern History, yet it is so indistinct that I must explain what is 
meant by it. It ought not to be so. I mean by western history, 
the history of all historically active, non-x4siatic nations and tribes 
—the history of the Europeans and their descendants in other 
parts of the world. In the groupiug and division of comprehen¬ 
sive subjects, clearness depends in a great measure upon the dis¬ 
tinctness of well-chosen terms. Many students of civilization 
have probably felt with me the desirableness of a concise term, 
which should comprehend within the bounds of one word, capable 
of furnishing us Avith an acceptable adjective, the Avhole of the 



AND SELF-GOVERNMENT. 


31 


western Caucasian portion of mankind—the Europeans and all 
their descendants in whatever part of the world, in America, Aus¬ 
tralia, Africa, India, the Indian Archipelago and the Pacific Islands. 
It is an idea which constantly recurs, and makes the necessity of a 
proper and brief term daily felt. Bacon said that “the wise ques¬ 
tion is half the science,” and may we not add that a wise division 
and apt terminology is its completion ? In my private papers I 
use the term Occidental, in a sufficiently natural contradistinction 
to Oriental. But Occidental like Western, indicates geographical 
position; nor did I feel otherwise authorized to use it here. Eu- 
ropides, would not be readily accepted either. Japhethian would 
comprehend more tribes than we wish to designate. That some 
term or other must soon be adopted seems to me elear, and I am 
ready to accept any expressive name formed in the spirit and ac¬ 
cording to the taste of our language. The chemist and natural 
historian are not the only ones that stand in need of distinct names 
for their subjects, but they are less exacting than scholars. 


32 


OIT CIVIL LIBERTY 


CIIAPTEK IL 

DEFINITIONS OF LIBERTY. 

A DISTINGUISHED writer lias said that every one 
desires liberty, but it is impossible to'say what it is.^ 
If he meant by liberty, civil liberty, and that it is 
impossible to give a definition of it, using the term 
definition in its strictest sense, he was right, but he 
was mistaken if he intended to say that we cannot 
state and explain what is meant by civil liberty in 
certain periods, by certain tribes, and that we cannot 
collect something general from these different views. 
Civil liberty does not fare worse in this respect than 
all other terms which designate the collective amount 
of different applications of the same principle, such 
as Fine Arts, Eeligion, Property, Eepublic. The 
definitions of all these terms imply the use of others 
variable in their nature. The time however is passed 
when, as in the age of the scholastic philosophy, it 
was believed that everything was strictly definable, 
and must be compressed within the narrow limits of 
an absolute definition before it could be entitled to 


* I believe this is said by Mr. de Chateaubriand in his Etudes 
Historiques, but I quote from memory, and a hurried glance at the 
work has not brought again the passage under my eye. 



AND SELF-GOVEENMENT. 


83 


tlie dignity of a tliorougli discnssion. The hope of 
being able absolutely to define things that belong 
either to the commonest life or the highest regions, 
betrays inexperience and proves a misconception of 
human language, which itself is never absolute ex¬ 
cept in mathematics. It misleads. Bacon, so illus¬ 
trious as a thinker, has two dicta which it will be 
well for us to remember throughout this discussion. 
He says: “ Generalities are barren, and the multi¬ 
plicity of single facts present nothing but confusion. 
The middle principles alone are solid, orderly, and 
fruitfuland in another part of his immortal works 
he states that “ civil knowledge is of all others the 
most immersed in matter and the hardliest reduced 
to axioms.” We may safely add: “And expressed in 
definitions.” It would be easy, indeed, and correct, 
as far as it would go, to say: Civil liberty is the idea 
of liberty, which is untrammelled action, applied to 
the sphere of politics; but although this definition 
might be called “ orderly,” it would certainly neither 
be “solid” nor “fruitful,” unless a long discussion 
should follow on what it means in reality and practice. 

This does by no means, however, affect the im¬ 
portance of investigating the subject of civil liberty 
and of clearly presenting to our minds what we 
mean by it, and of what elements it consists. Dis¬ 
orders of great public inconvenience, even blood¬ 
shed and political crimes have often arisen from the 
fact that the two sacred Avords, Liberty and People 
Avere freely and passionately used without a clear 
and definite meaning being attached to them. A 
people that loves liberty can do nothing better to 


34 


ON CIVIL LIBEKTY 


promote tlie object of its love than deeply to study 
it, and in order to be able to do this, it is necessary 
to analyze and to know the threads which compose 
the valued texture. 

In a general way, it may here be stated as an ex¬ 
planation—not offered as a definition—that when 
the term Civil Liberty is used, there is now always 
meant a high degree of mutually guaranteed protec¬ 
tion against interference with the interests and rights, 
held dear and important by large classes of civilized 
men or by all the members of a state, together with an 
effectual share in the making and administration of the 
laws as the best apparatus to secure that protection, 
and constituting the most dignified government of 
men who are conscious of their rights and of the de¬ 
stiny of humanity. But what are these guarantees ? 
these interests and rights ? Who are civilized men ? 
In what does that share consist ? Which are the men 
that are conscious of their rights? What is the 
destiny of humanity ? Who are the large classes ? 

I mean by civil liberty that liberty which plainly 
results from the application of the general idea of 
freedoiii to the civil state of man, that is, to his rela¬ 
tions as a political being—a being obliged by his 
nature and destined by his Creator to live in society. 
Civil liberty is the result of man’s twofold character, 
as an individual and social being, so soon as both are 
equally respected. 

All men desire freedom of action. We have this 
desire, in some degree, even in common with the 
animal, where it manifests itself at least as a desire 
for freedom of motion. The fiercest despot desires 


AND SELF-GOVERNMENT. 


35 


liberty as iniich as tlie most ardent republiean; in¬ 
deed, the difficulty is that he desires it too much— 
seilishly, exclusively.^ He wants it for himself alone. 
He has not elevated himself to that idea of granting 
to his fellows the same liberty which he claims for him¬ 
self, and of desiring to be limited in his own power 
to trench on the same liberty of others. It is one 
of the greatest ideas to which man can rise. In this 
mutual grant and check lies the essence of civil 
liberty, as we shall presently see more fully, and in 

2 I believe that this has never been shown with greater and more 
truculent naivete, than by the present King of Dahomey in the 
letter he wrote to the Queen of England in 1852. Every case in 
which an idea, bad or good, is carried to a point of extreme con¬ 
sistency is worth being noted; I shall give therefore a part of it. 

The British government had sent an agent to that king, with 
presents, and the direction to prevent him from further trade in 
slaves; and the king’s answer contains the following passage: ^ 

“The king of Dahomey presents his compliments to the queen 
of England. The presents which she has sent him are very ac¬ 
ceptable and are good to his face. When governor Winiett visited 
the king, the king told him that he must consult his people before 
he could give a final answer about the slave-trade. He cannot see 
that he and his people can do without it. It is from the slave-trade 
that he derives his principal revenue. This he has explained in a 
long palaver to Mr. Cruikshank. He begs the queen of England 
to put a stop to the slave-trade everywhere else, and allow him to 
continue it.” 

In another passage he says : 

“The king begs the queen to make a law that no ships be al¬ 
lowed to trade at any place near his dominions lower down the 
coast than Whydah, as by means of trading vessels the people are 
getting rich and resisting his authority. He hopes the queen Avill 
send him some good toAver guns and blundei’busses and plenty of 
them, to enable him to make war,” (which means razzais, in order 
to carry off captives for the barracu, or slave market.) 



86 


ON CIVIL LIBERTY 


it lies its dignity. It is a grave error to suppose that 
the best government is absolutism with a wise and 
noble despot at the head of the state. As to conse¬ 
quences it is even worse than absolutism with a 
tyrant at its head. The tyrant may lead to reflection 
and resistance; the wisdom and brilliancy, however, 
of the government of a great despot or dictator de¬ 
ceives and unfits the people for a better civil state. 
This is at least true with reference to all tribes not 
utterly lost in despotism as the Asiatics are. The 
periods succeeding those of great and brilliant de¬ 
spots have always been calamitous.^ The noblest 
human work—nobler even than literature and sci¬ 
ence, is broad civil liberty, well secured and wisely 
handled. The highest ethical and social production 
of which man, with his inseparable moral, jural, 
aesthetic and religious attributes is capable, is the 
comprehensive and minutely organic self-government 
of a free people; and a people truly free at home, and 
dealing in fairness and justice with other nations, is 
the greatest, unfortunately also the rarest subject 
ofiered in all the breadth and length of history. 

In the definitions of civil liberty, which philoso¬ 
phers or publicists have, nevertheless, endeavored to 
give, they seem to have fallen into one or more of 
the following errors. Some have confounded liberty, 
the status of the freeman, as opposed to slavery, with 
civil liberty. But every one is aware, that while we 
speak of freemen in Asia, meaning only non-slaves, 
we would be very unwilling to speak of civil liberty 


3 I have dwelt on this subject at length in my Political Ethics. 



AND SELF-GOVERNMENT. 


87 


in that part of the globe. The ancients knew this 
distinction perfectly well. There were the Spartans, 
constituting the ruling body of citizens, and enjoying 
what they would have called, in modern language, 
civil liberty, a full share in the government of the 
polity; there were helots, and there were Lacedae¬ 
monian people, who were subject, indeed, to the 
sovereign body of the Spartans, but not slaves. 
They were freemen, compared to the helots; but 
subjects, as distinguished from the Spartans. This 
subject is very plain, but the confusion has not only 
frequently misled in times past, but is actually going 
on to this day in many countries. 

Others have fallen into the error of substituting a 
different word for liberty, and believed that they had 
thus defined it, while others again have confounded 
the means by which liberty is secured by some, with 
liberty itself. Some, again, have been led, unawares, 
to define something wholly different from civil liberty, 
while imagining that they were giving the generics 
and specifics of the subject. 

The Eoman lawyers say that liberty is the power 
(authority) of doing that which is not forbidden by 
the law. That the supremacy of the law and exclu¬ 
sion of arbitrary interference is a necessary element 
of all liberty, every one will readily admit; but if no 
additional characteristics be given, we have, indeed, 
no more than a definition of the status of a non-slave. 
It does not state whence the laws ought to come, or 
what spirit ought to pervade them. The same law¬ 
yers say: Whatever may please the ruler has the 
VOL. I.—4 


88 


ON CIVIL LIBERTY 


force of law.'* They might have said with equal cor¬ 
rectness : Freeman is he who is directly subject to 
the emperor; slave, he who is subject to the emperor 
through an individual master. It settles nothing as 
to what we call liberty, as little as the other dictum 
of the civil law, which divides all men into freemen 
and slaves. The meaning of freeman, in this case, is 
nothing more than non-slave, while our word free¬ 
man, when we use it in connection with civil liberty, 
means not merely a negation of slavery, but the 
enjoyment of positive and high civil privileges and 
rights.® 

It is remarkable that an English writer of the last 
century. Dr. Price, makes the same simple division 
of slavery and liberty, although it leads him to very 
different results.® According to him, liberty is self- 
determination or self-government, and every inter¬ 
ruption of self-determination is slavery. This is so 
extravagant, that it is hardly worth our while to 
dwell on it. Civil liberty is liberty in a state of 
society, that is in a state of union with equals, con¬ 
sequently limitation of self-determination is one of 
the necessary characteristics of civil liberty. If this 
author did not mean that the terms he employed 
should be taken strictly, it would have been better 
to use such terms as might have been taken strictly. 

< Quod principi placuerit legis liabet vigorem.—L. i. lib. i. tit. 4 
Dig. 

5 Summa divisio de jure personarum haec est, quod omnes 
homines aut liberi sunt aut servi.—Inst. i. 3. 

6 Observations on the Nature of Civil Liberty, &c., by Richard. 
Price, D. D., 3d ed. Lond. 1776. 



AND SELF-GOVERNMENT. 


89 


Cicero says: Liberty is tbe power of living as 
tboii wiliest.'^ This does not apply to civil liberty. 
If it was meant for political liberty, it would have 
been necessary to add: “ So far as the same liberty 
of others does not limit your own living as you 
choose.” But we always live in society, so that this 
definition can have a value only as a most general 
one, to serve as a starting-point, in order to explain 
libert}^ if applied to different spheres. Whether this 
was the probable intention of a practical Eoman, I 
need not decide. 

Libertas came to signify in the course of time, and 
in republican Eome, simply republican government, 
abolition of royalty. 

The Greeks likewise gave the meaning of a dis¬ 
tinct form of government to their word for liberty. 
Eleutheria, they said, is that polity in which all are 
in turn rulers and ruled. It is plain that there is an 
inkling of what we now call self-government in this 
adaptation of the word, but it does not designate 
liberty as we understand it. Eor, it may happen, and, 
indeed, it has happened repeatedly, that although 
the rulers and ruled change, those that are rulers 
are arbitrary and oppressive whenever their turn 
arrives; and no political state of things is more effi¬ 
cient in preparing the people to pass over into despo¬ 
tism, by a sudden turn, than this alternation of arbi¬ 
trary rule. If this definition really defined civil 
liberty, it would have been enjoyed in a high degree 


7 Quid est libertas ? Potestas vivendi ut velis.—Cic. Farad. 5, 
1, 34. 



40 


ON CIVIL LIBERTY 


by those communities in the middle ages, in wbich 
constant changes of factions, and persecutions of the 
weaker parties were taking place. Athens, when 
she had sunk so low, that the lot decided the ap¬ 
pointment to all important offices, would, at that 
very period, have been freest, while, in fact, her 
government had become plain democratic absolutism, 
one of the very worst of all governments, if, indeed, 
the term government can be properly used of that 
state of things which exhibits Athens after the times 
of Alexander, not like a bleeding and fallen hero, but 
rather like a dead body, on which birds and vermin 
make merry. 

Not wholly dissimilar to this definition, is the one 
we find in the French Political Dictionary, a work 
published in 1848, by leading republicans, as this 
term was understood in France. It says, under the 
word liberty: “ Liberty is equality, equality is 

liberty.” If both were the same, it would be sur¬ 
prising that there should be two distinct words. 
Why were both terms used in the famous device, 
“ Liberty, Equality, Fraternity,” if the first two are 
synonymous, yet an epigrammatic brevity was evi¬ 
dently desired? Napoleon distinguished between 
the two very pointedly, when he said to Las Cases, 
that he gave to the Frenchmen all the circumstances 
allowed, namely, equality, and that his son, had he 
succeeded him, would have added liberty. The 
dictum of Napoleon is mentioned here merely to 
show, that he saw the difference between the two 
terms. Equality, of itself, without many other ele- 


AXD SELF-GOVERXMEXT. 


41 


ments, has no intrinsic connection with liberty. All 
may be equally degraded, equally slavish, or equally 
tyrannical. Equality is one of the pervading features 
of eastern despotism. A Turkish barber may be 
made vizier, far more easily than an American hair¬ 
dresser can be made a commissioner of roads, in the 
United States, but there is not on that account more 
liberty in Turkey. Diversity is the law of life, 
absolute equality is that of stagnation and death.® 

A German author of a meritorious work begins it 
with this sentence: “ Liberty—or Justice, for where 
there is justice there is liberty, and liberty is nothing 
else than justice—has by no means been enjoyed 
by the ancients, in a higher degree than by the 
moderns.”® Either the author means by justice 
something peculiar, which ought to be enjoyed by 
every one, and which is not generally understood by 
the term, in which case the whole sentence is nuga¬ 
tory, or it expresses a grave error, since it makes 
equivalents of two things which have received two 
different names, because they are distinct from one 
another. The two terms would not even be allowed 
to explain each other in a dictionary. 

Liberty has not unfrequently been defined as con¬ 
sisting in the rule of the majority, or it has been said, 
where the people rule there is liberty. The rule of 
the majority, of itself, indicates the power of a cer- 

8 More has been said on this subject in Political Ethics, and we 
shall return to it at a later period. 

8 Descriptions of the Grecian Polities, by F. W. Tittman, Leipsig, 
1822. 


4* 



42 


ON CIVIL LIBERTY 


tain body, but power is not liberty. Suppose tlie 
majority bid you drink hemlock, is there liberty for 
you? Or suppose the majority give away liberty, 
and establish a despot? We might say with greater 
truth, that where the minority is protected although 
the majority rule, there, probably, liberty exists. 
But in this latter case it is the protection, or in other 
words, rights beyond the reach of the majority 
which constitute liberty, not the power of the ma¬ 
jority. There can be no doubt that the majority 
ruled in the French massacres of the Protestants; 
was there liberty in France on that account ? All 
despotism, without a standing army, must be sup¬ 
ported or acquiesced in, by the majority. It could 
not stand otherwise. If the definition be urged, 
that where the people rule there is liberty, we must 
bask^at once, what people, and how rule ? These in¬ 
tended definitions, therefore, do not define. 

Other writers have said: “Civil liberty consists in 
the responsibility of the rulers to the ruled.” It is 
obvious that this is an element of all civil liberty, 
but the question what responsibility is meant is an 
essential one, nor does this responsibility alone suf¬ 
fice by any means to establish civil liberty. The 
dey of Algiers used to be elected by the soldiery, 
who deposed him if he did not suit, but there was no 
liberty in Algiers, not even for the electing soldiery. 
The idea of the best government, repeatedly urged 
by a distinguished French publicist, Mr. Girardin, is, 
that all power should be centered in an elective chief 
magistrate, who by frequent election should be made 


AND SELF-GOVERNMENT. 


43 


responsible to tbe people—in fact, an elective des¬ 
potism. Is there an American or Englishman living 
who would call such a political monstrosity freedom, 
even if the elected despot would allow himself to be 
voted upon a second time ? This conception of civil 
liberty was the very one which Louis Napoleon pub¬ 
lished in his proclamation, issued after the coup 
d’etat, and in which he tells the people that he leaves 
their fate in their own hands! Many Frenchmen 
voted for him and for these fundamental principles 
of a new government, but those who did so, voted 
for him for the very reason that they considered 
liberty dangerous and inadmissible. This definition 
then is peculiarly incorrect. 

Again, it has been said, liberty is the power of 
doing all that we ought to be allowed to do. But, 
who allows ? What ought to be allowed ? Even if 
these questions were answered, it would not define 
liberty. Is the imprisoned homicide free, although 
we allow him to do all that which he ought to be 
allowed to do ? 

Montesquieu says“ Philosophical liberty con¬ 
sists in the exercise of one’s will, or at least (if we 
must speak of all systems) in the opinion according 
to which one exercises his will. Political liberty con¬ 
sists in the security, or at least in the opinion which 
one has of one’s security.” He continues: “This 
security is never more attacked than in public and 
private accusations. It is therefore upon the excel- 


10 Esprit des Lois XII. 2. “Of the Liberty of the Citizen.' 



44 


ON CIVIL LIBEKTY 


lence of the criminal laws that chiefly the liberty of 
the citizen depends.” “ 

That security is an element of liberty has been 
acknowledged; that just penal laws, and a carefully 
protected penal trial, are important ingredients of 
civil liberty, will be seen in the sequel; but it cannot 
be admitted that that great writer gives a definition 
of liberty in any way adequate to the subject. We 
ask at once what security? Nations frequently rush 
into the arms of despotism for the avowed reason of 
finding security against anarchy. What else made 
the Romans so docile under Augustus? Those 
French who insist upon the “necessity” of Louis 
Napoleon, do it on the avowal that anarchy was 
impending, but no one of us will say that Augustus 
was the harbinger of freedom, or that the French 
emperor allows the people any enjoyment of liberty. 
If, however, Montesquieu meant the security of those 
liberties which Algernon Sidney meant when he 
said: “The liberties of nations are from God and 
nature, not from kings”—in that case he has not 
advanced the discussion, for he does not say in what 
they consist. 

If, on the other hand, the penal law, in which it 
must be supposed Montesquieu included the penal 
trial, be made the chief test of liberty, we cannot help 
observing that a decent penal trial is a discovery in 
the science of government of the most recent date. 
The criminal trials of the Greeks and Romans, and 


“ He goes on treating liberty in a similar manner; for instance, 
at the beginning of Chapter IV. of the same work. 



AND SELF-GOVERNMENT. 


45 


of the middle ages were deficient both in protecting 
the accused and society, and without trespassing we 
may say that in most cases they were scandalous. 
Must we then say, according to Montesquieu, that 
liberty never dwelt in those states 

To pass from a great writer to one much his 
inferior, I shall give Dr. Paley’s definition of civil 
liberty. He says: “ Civil liberty is the not being re¬ 
strained by any law but what conduces in a greater 
degree to the public welfare.”^^ I should hardly 
have mentioned this definition, but that the work 
from which it is taken is still in the hands of thou¬ 
sands, and that the author has obviously shaped and 
framed it with attention. Who decides on what 
public welfare demands ? Is that no important item 
of civil liberty ? Who makes the law ? Suffice it 
to say that the definition may pass for one of a good 
government in general, that is, one which befits the 
given circumstances, but it does not define civil 
liberty. A Titus, a benevolent Kussian czar, a wise 


’2 That a writer of Montesquieu’s sagacity and regard for liberty 
should have thus insufficiently defined so great a subject, is nothing 
more than what frequently happens. No man is always himself, 
and Bishop Berkeley on Tar Water represents a whole class of weak 
thoughts by strong minds. I do not only agree with what sir 
James Mackintosh says in praise of Montesquieu, in his Discourse 
on the Study of the Law of Nature and Nations; but I would add, 
that no person can obtain a correct view of the history through 
which political liberty has been led in Europe, or can possess a 
clear insight into many of its details, without making himself ac¬ 
quainted with the Spirit of LaAvs. His work has doubtless been of 
great influence. 

13 Beginning of the fifth chapter of Paley’s Political Philosophy. 



46 


ON CIVIL LIBERTY 


dictator, a conscientious sultan, a kind master of 
slaves, ordain no restraint but wliat they think is 
required by the general welfare; yet to say that the 
Komans under Titus, the Eussian, the Asiatic, the 
slave is on that account in the enjoyment of civil 
liberty, is such a perversion of language that we 
need not dwell upon this definition, surprising even 
in one who does not generally distinguish himself by 
unexceptionable definitions. We almost feel tempted 
to close this list of definitions with the words with 
which Lord Bussell begins his chapter on liberty. 
He curtly says: “ Many definitions have been given 
of liberty. Most of these deserve no notice.” 

Whatever the various definitions of civil liberty 
may be, we take the term in its usual adaptation 
among modern civilized nations, in which it always 
means liberty in the political sphere of man. We 
use it in that sense in which freemen, or those who 
strive to be free, love it, in which bureaucrats fear it 
and despots hate it, in a sense which comprehends 
what has been called public liberty, and personal 
liberty, and in conformity with which all those who 
cherish and those who disrelish it, distinctly feel that, 
whatever its details may be, it always means a high 
degree of untrammelled political action in the 
citizen, and an acknowledgment of his dignity and 


Lord John Russell’s History of the English Government and 
Constitution, second ed., London, 1825. This prominent and long- 
tried statesman distinguishes, on page 15, between civil, personal, 
and politic,al liberty; but even if he had been more successful in 
this distinction than he seems to me actually to have been, it would 
not be necessary to adopt it for our present purpose. 



AND SELF-GOVERNMENT. 


47 


his important rights, by the government which is 
subject to his positive and organic, not only to his 
roundabout and vague influence. 

This has always been felt; but more is necessary. 
We ought to know our subject. We must answer, 
then, this question : In what does civil liberty truly 
consist ? 


48 


ON CIVIL LIBERTY 


CHAPTER III. 

THE MEANING OF CIVIL LIBERTY. 

Liberty, in its absolute sense, means tlie faculty 
of willing and tlie power of doing wbat has been 
willed, without influence from any other source, or 
from without. It means self-determination; unre¬ 
strainedness of action. 

In this absolute meaning, there is but one free 
being, because there is but one being whose will is 
absolutely independent upon any influence, but that 
which he wills himself, and whose power is adequate 
to his absolute will—who is almighty. Liberty, 
self-determination, unrestrainedness of action, as¬ 
cribed to any other being, or applied to any other 
sphere of action, has necessarily a relative and 
limited, therefore an approximative sense only. 
With this modification, however, we may apply the 
idea of freedom to all spheres of action and reflec¬ 
tion.^ 


* It will be observed that the terms Liberty and Freedom are 
used here as synonymes. Originally they meant the same. The 
German Freiheit (literally Freehood) is still the term for our Liberty 
and Freedom; but as it happened in so many cases in our language 
where a Saxon and Latin term existed for the same idea, each 
acquired in the course of time a different shade of the original 



AND SELF-GOVERNMENT. 


49 


If we cTpply the idea of self-determination to the 
sphere of politics, or to the state, and the relations 

meaning, either permanently so, or at least under certain circum¬ 
stances. Liberty and Freedom are still used in many cases as 
synonymous. We speak of the freedom as well as the liberty of 
human agency. It cannot be otherwise, since we have but one 
adjective, namely Free, although we have two nouns. When these 
are used as distinctive terms, freedom means the general, liberty, 
the specific. We say: The slave was restored to freedom; and we 
speak of the liberty of the press, of civil liberty. Still, no orator 
or poet would hesitate to say, freedom of the press if rhetorically 
or metrically it’should suit better. As in almost all cases in which 
we have a Saxon and a Latin term for the same main idea, so in 
this, the first, because the older and original term, has a fuller, 
more compact, and more positive meaning; the latter, a more 
pointed, abstract or scientific sense. This appears still more in the 
verbs to free, and to liberate. The German language has but one word 
for our Freedom and Liberty, namely Freiheit; and Freithum 
(literally freedom) means in some portions of Germany an estate of 
a Freiherr (baron). In Dutch, the word Vryheid, (literally free- 
hood) is freedom, libei'ty, while Vrydom (literally freedom) means 
a privilege, an exemption from burdens. This shoAVS still more 
that these words meant originally the same. * 

The subject of liberty will occupy us throughout this work, and 
is of itself a subject of such magnitude, that we may Avell allow 
ourselves the time of reflecting for a moment on the terms which 
man has employed to designate this great concept. 

The Greek word eleutheros, free, properly means, he who can 
walk where he likes. See Passow ad verbum, and 

The Latin liber is believed to be derived from the same 
root with the Gothic Lih (in German Ldh, body, connected with 
the Gothic Liban, our live, the German leben), so that liber would 
have meant originally, he Avho has his own body, AAdiose body does 
not belong to some one else. It is natural that freedom appeared 
to the ancients, first of all, as a contradistinction to slavery, or as 
its negation. This is not quite dissimilar to the fact that most- 
languages designate the state of purity by an adjective, Avhich 
indicates a negation of the state of guilt. We say innocent, the 

VOL. I.— 5 



50 


ON CIVIL LIBERTY 


wliicli subsist between it and tbe individual, and 
between different states, we must remember that 

negation of nocent, guilty; as if we were calling light undark- 
ness. The guilt, the crime strikes first, and from it are abstracted 
the negations unguilt, innocence. If all were free, and if freedom 
had never been violated, we would probably have no word for 
freedom. 

That Body is taken in this instance to designate independence, 
with which the ideas of individuality and humanity are closely con¬ 
nected, is in conformity with the history of all terms of abstraction. 
The sensuous world furnishes man with the original term and idea, 
which the advancing intellect refines and distils. Nor can it sur¬ 
prise us who to this day say somebody, everybody, for some person, 
every man. Who does not think at once of Burns’s lovely, “Gif a 
body meet a body,” where body is used for human individual? At 
the time of writing this note, I met with this question, in a Scot¬ 
tish penal trial: Was that arsenic for a beast or a body?— Burton's 
Criminal Trials, vol. ii. page 59. 

Here, then, body is taken so distinctly for man that it is contra¬ 
distinguished to beast. In the same natural manner, it may come 
to signify man, not with reference to his intellect, but in connection 
with liberty, as contradistinguished to a man-thing, i. e. slave. 

At a later period, the soul comes to designate individuals, as we 
say in statistical accounts, so many souls, for so many persons. 

The word Free is one of the oldest words with which we are ac¬ 
quainted. We find free, fry, fryg, vry, in many languages, and Hesi- 
chius gives as a Lydian word — tov Ixsv^spov, from which the name 

of the Phrygians was probably derived. It is probably connected 
with several prepositions and verbs which we find in many lan¬ 
guages, but this is not the place to carry the etymological inquiry 
any farther. It may be added, however, that through all the an¬ 
cient Teutonic languages there is running a root Fr and Pr, with 
words derived from it, which indicate protection, pax, foedus. 
Frihals or Frijhals is the ancient High German for a protected 
man, a free-man, a non-slave man. How this root again is con¬ 
nected with the Gothic frijan, frion for loving, kissing (hence our 
word friend), and the Sanscrit pri, which means exhilarare, amare, 
cannot be settled hero. I would refer the reader for more informa- 



AND SELF-GOVERNMENT. 51 

the following points are necessarily involved in the 
comprehensive idea of the State: 

The state is a society, or union of men—a sove¬ 
reign society and a society of human beings, with an 
indelible character of individuality. The state is 
moreover an institution which acts through govern-* 
ment, a contrivance which holds the power of the 
whole, opposite to the individual. Since the state 
then implies a society which acknowledges no supe¬ 
rior, the idea of self-determination applied to it means 
that, as a unit and opposite to other states, it be* 
independent, not dictated to by foreign governments, > 
nor dependent upon them any more than itself has 
freely assented to be, by treaty and upon the princi¬ 
ples of common justice and morality, and that it be 
allowed to rule itself, or that it have what the Greeks . 

' chiefly meant by the word autonomy.^ The term 1 

tion on this subject to L. Diefenbach’s Comparative Dictionary of 
the Gothic Language, a German work, and to Grimm’s German 
Dictionary, which, indeed, I have not yet been able to see ; but 
the name of Grimm is so well known to the world as that of the 
undisputed highest authority on all questions of Teutonic etymology 
that the author does not hesitate to direct his reader to a work 
which he himself has not yet examined. 

It is a curious fact that the Armenians use, for liberty, a com¬ 
pound of ink'n, self, and ishkhanootzoon, dominion, sovereignty. So 
that the Armenians actually have our noble word, self-government. 
My learned friend, the Rev. J. W. Miles, of Charleston, to whom I 
owe this contribution and much information on the Asiatic terms 
for liberty, adds, “I think a word of similar composition is used in 
the Georgian for liberty.” 

2 Atonomeia is literally translated Self-Government, and un¬ 
doubtedly suggested the English word to our early divines. Do¬ 
naldson, in his Greek dictionary, gives Self-Government as the 



52 


ON CIVIL LIBERTY 


/state, at tlie same time, means a society of men, that 
' is of beings mtli individual destinies and responsibi¬ 
lities from wliicli arise individual rights,^ that show 
themselves the clearer and become more important, as 
man advances in political civilization. Since, then, 
he is obliged and destined to live in society, it is 
necessary to prevent these rights from being en¬ 
croached upon by his associates. Since, however, not 
only the individual rights of man become more dis¬ 
tinctly developed with advancing civilization, but 
also his social character and all mutual dependence, 
this necessity of protecting each individual in his 
most important rights, or, which is the same, of check¬ 
ing each from interfering with each, becomes more 
important with every progress he makes. 

/ Lastly, the idea of the state involving the idea of 
government, that is of a certain contrivance with 
coercing power superior to the power of the indi¬ 
vidual, the idea of self-determination necessarily im- 


English equivalent for the Greek Autonomy, but as it has been 
stated above, it meant in reality independence upon other states, a 
non-colonial, non-provincial state of things. I beg the reader to 
remember this fact; for it is significant that the term autonomy 
retained with the Greeks this meaning, facing as it were foreign 
states, and that Self-Government, the same word, has acquired with 
ourselves, chiefly, or exclusively a domestic meaning, facing the 
relations in which the individual and home institutions stand to the 
state which compi-ehends them. 

3 The fact that man is in his very essence at once a social being 
and an individual; that the two poles of sociality and individualism 
must forever determine his political being, and that he cannot give 
up either the one or the other, with the many relations flowing 
from this fundamental point, form the main subject of the first vo¬ 
lume of my Political Ethics, to which I would refer the reader. 



AXD SELF-GOVEENMENT. 



plies protection of tlie individual against encroacliino' 

O C) 

power of tlie government, or cliecks against govern-' 
ment interference. And again, society as a unit 
having its objects, ends, and duties, liberty includes 
a proper protection of government, as well as an 
efficient contrivance to coerce it to carry out the 
views of society, and to obtain its objects. . 

We come thus to the conclusion that liberty ap-\ 
plied to political man, practically means, in the 
main, protection or checks against undue interfe¬ 
rence, whether this be from individuals, from masses, 
or from government. The highest amount of liberty 
comes to signify the safest guarantees of undisturbed 
legitimate action, and the most efficient checks against 
undue interference."* Men, however, do not occupy 
themselves with that which is unnecessary. Breath¬ 
ing is unquestionably a right of each individual, 
__ \ 

It is interesting with reference to the above subject, that the 
Teutonic frei and free comes from the same root fr, with fridu and 
frida (in modern German Friede), that is peace, to which allusion 
has been made in the preceding note. Fridon in old Saxon meant 
to protect, to make secure. The old Norse his frulo (fridho) which 
the lexicographer renders by iutas, fortis, mansuetus, formosas. In 
some parts of Germany and Switzerland Friede [peace) still means 
fence, that is protection. In the middle ages frediis vcnd freda meant 
the legal protection within a certain district. The word goes 
through the Franconian, Alemannian, Longobardian and other laws, 
and reminds us of the English term, the king’s peace. Freiburg 
meant originally a town and district within which certain protection 
and security was to be found. Without multiplying the instances, 
which might be done ad infinitum, the fact that in the Teutonic 
languages the term freedom is of the same root with that for legal 
security and protection, or rather that the latter has passed over 
to that of liberty, is well established and full of meaning. 



54 


ON CIVIL LIBERTY 


proved by bis existence; bnt, since no power bas yet 
interfered witb tbe undonbted right of respiration, 
no one bas ever tbongbt it necessary to gnarantee 
tbis elementary right. We advance then a step 
farther in practically considering civil liberty, and 
find that it chiefly consists in guarantees (and corre¬ 
sponding checks) of those rights which experience 
has proved to be most exposed to interference, and 
which men hold dearest and most important. 

This latter consideration adds a new element. 
Freemen protect* their most important rights, or 
those rights and those attributes of self-determina¬ 
tion, which they hold to be most essential to their 
idea of humanity; and as this very idea of humanity 
comprehends partly some ideas common.to men 
of all ages, when once conscious of their human¬ 
ity, and partly other ideas which differ according 
to the view of humanity itself, which may prevail 
at different periods, we shall find, in examining the 
great subject of civil freedom, that there are certain 
' permanent principles met with wherever we discover 
any aspiration to liberty; and that, on the other 
hand, it is rational to speak of ancient, medieval, or 
modern liberty, of Greek or Roman, Anglican and 
Galilean, pagan and Christian, American and English 
liberty. Certain tribes or nations, moreover, may 
actually aim at the same objects of liberty, but may 
have been led, in the course of their history, and 
according to the variety of circumstances produced 
in its long course, to different means to obtain similar 
ends. So that this fact, likewise, would evolve dif¬ 
ferent systems of civil liberty, either necessarily or 


AND SELF-GOVEENMENT. 


55 


only incidentally so. Politics are like arcliitectiire, 
which is determined by the objects the builder has 
in view, the materials at his disposal, and the desire 
he feels of manifesting and revealing ideas and aspi¬ 
rations in the material before him. Civil liberty is 
the idea of liberty in connection with politics, and 
must necessarily partake of the character or inter¬ 
twine itself with the whole system of politics of a 
given nation. 

This view, however correct, has, nevertheless, mis¬ 
led many nations. It is true, that the system of poli¬ 
tics must adapt itself to the materials and destinies of a 
nation; but this very truth is frequently perverted by 
rulers who wish to withhold liberty from the people, 
and do it on the plea that the destiny of the nation^ 
is conquest, or concentrated action in different 
spheres of civilization, with which liberty would in¬ 
terfere. In the same manner are, sometimes, whole 
portions of a people, or even large majorities misled. 
They seem to think that there is a fate written some¬ 
where beyond the nation itself, and independent of 
its own morality, to which everything, even justice 
and liberty must be sacrificed. It is at least a very 
large portion of the French that thus believes the 
highest destiny of France to consist in ruling as the 
first power in Europe, and who openly say, that every¬ 
thing must bend to this great destiny. So are many 
among us, who seem to believe that the highest destiny 
of the United States, consists in the extension of her 
territory—a task in which, at best, we can only be 
imitators, while, on the contrary, our destiny is one 
of its own, and of a substantive character. 


56 


ox CIVIL LIBERTY 


At tlie present stage of onr inquiry, however, we 
have not time to occupy ourselves with these aberra¬ 
tions. 

All that is necessary to vindicate at present is, 
that it is sound and logical to speak of eternal prin¬ 
ciples of liberty and at the same time of ancient and 
modern liberty, and that there may be, and often 
must be various systems of civil liberty, though they 
need not, on that account, differ as to the intensity 
of liberty which they guarantee. 

That Civil Liberty, or simply Liberty, as it is 
often called, naturally comes to signify certain mea¬ 
sures, institutions, guarantees or forms of govern¬ 
ment, by which people secure or hope to secure 
liberty, or an unimpeded action in those civil matters 
or those spheres of activity which they hold most 
important, appears even from ancient writers. When 
Aristotle, in his work- on politics speaks of liberty, 
he means certain peculiar forms of government, and 
he uses these as tests, to decide whether liberty does 
or does not exist in a polity, which he contemplates 
at the time. In the Latin language Libertas came 
to signify what we call republic, or a non-regal go¬ 
vernment. Kespublica did not necessarily mean our 
republic, as our term Commonwealth may mean a 
republic—a commonwealth man meant a republican 
in the English revolution^—but it does not necessa- 

5 The republic—if, indeed, we can say that an actual and bona 
fide republic ever existed in England—was called the state in con¬ 
tradistinction to the regal government. During the restoration 
under Charles the Second men would say: “In the times of tlie 
state,” meaning the interval between the death of the first Charles 



AND SELF-GOVERNMENT. 


57 


rily do so. When we find in Quintilian the expres¬ 
sion : Asserere libertatem reipuhlicce^ we clearly see that 
respublica does not necessarily mean republic, but 
only when the commonwealth, the system of public 
affairs, was what we now call a republic. Since this, 
however, actually was the case during the best times 
of Eoman history, it was natural that respublica re¬ 
ceived the meaning of our word republic in most 
cases. 

The term liberty had the same meaning in the 
middle ages, wherever popular governments sup¬ 
planted monarchical, often wdiere they superseded 
aristocratic polities. Liberty and republic became 
in these cases synonymous.® 

and the resumption of government by the second. The term State 
acquired first this peculiar meaning under the Presbyterian govern¬ 
ment. 

® It is in a similar sense that Freiligrath, a modern German poet, 
begins one of his most fervent songs with the line: “Die Freiheit 
istdie Ptepublik,” that is: Freedom is the Republic. 



58 


ON CIVIL LIBERTY 


CHAPTEE ly. 

ANCIENT AND MODERN LIBERTY.—ANCIENT, MEDIEVAL, 
AND MODERN STATES. 

That wMcli tlie ancients understood by liberty 
differed essentially from wbat we moderns call civil 
liberty. Man appeared to the ancients in bis highest 
and noblest character, when they considered him as 
a member of the state or as a political being. Man 
could rise no higher in their view. Citizenship was 
in their eyes the highest phase of humanity. Aris¬ 
totle says in this sense, the state is before the indi¬ 
vidual. With us the state, and consequently the 
citizenship, remain means, all-important ones, indeed, 
but still means to obtain still higher objects, the 
fullest possible development of humanity in this 
world and for the world to come. There was no 
, sacrifice of individuality to the state, too great for 
the ancients. The greatest political philosophers of 
antiquity unite in holding up Sparta as the best 
regulated commonwealth—a communism in which 
the individual was sacrificed in such a degree, that 
to the most brilliant pages of all history she has 
contributed little more than deeds of bravery and 
saliant anecdotes of stoic heroism. Greece has re- 


AND SELF-GOVERNMENT. 


59 


kindled modern civilization, in tke restoration of 
letters. The degenerate keepers of Greek literature 
and art, who fled from Constantinople when it was 
conquered by the Turks, and settled in Western 
Europe, were nevertheless the harbingers of a new 
era. So great was Grecian knowledge and civiliza¬ 
tion even in this weakened and crippled state! Yet 
in all that intellectuality of Greece which lighted our 
torch in the fifteenth and sixteenth centuries, there 
is not a single Lacedaemonian element. 

Plato, when he endeavors to depict a model re¬ 
public, ends with giving us a communism, in which 
even individual marriage is destroyed for his higher 
classes.^ 

We, on the other hand, acknowledge individual 
and primordial rights, and seek one of the highest 
aims of civil liberty in the most efficient protection 
of individual action, endeavor, and rights. I have 
dwelled upon this striking and instructive difference 
at length in my work on Political Ethics,^ where I 
have endeavored to support the opinion here stated 
by historical facts and passages of the ancients. I 
must refer the reader, therefore, to that part of the 
work; but there is a passage which seems to me so 
important for the present inquiry, as well as for 

1 It is a striking fact that nearly all political writers who have 
indulged in creating Utopias—I believe all without exception—have 
followed so closely the ancient writers, that they rose no higher 
than to communism. It may be owing in part to the fact, that 
these writers composed their works soon after the restoration of 
letters, when the ancients naturally ruled the minds of men. 

2 Chapter XIII. of the second book. 



60 


ON CIVIL LIBEETY 


another wliicli will soon occupy our attention, that, 
unable to express myself better than I have done in 
the mentioned work, I must beg leave to insert it 
here. It is this: 

“We consider the protection of the individual as 
one of the chief subjects of the whole science of poli¬ 
tics. The sTiicstr^fivjj OT political science of the 

ancients, does not occupy itself with the rights of the 
individual. The ancient science of politics is what 
we would term the art of government,'that is, “the 
art of regulating the state, and the means of pre¬ 
serving and directing it.” The ancients set out from 
the idea of the state, and deduce every relation of the 
individual to it from this first position. The moderns 
acknowledge that the state, however important and 
indispensable to mankind, however natural, and 
though of absolute necessity, still is but a means to 
obtain certain objects, both for the individual and for 
society collectively, in which the individual is bound 
to live by his nature. The ancients had not that 
which the moderns understand by jus naturale, or the 
law which flows from the individual rights of man as 
man, and serves to ascertain how, by means of the 
state, those objects are obtained which justice de¬ 
mands for every one. On what supreme power rests, 
.what the extent and limitation of supreme power 
ought to be, according to the fundamental idea of the 
state, these questions have never occupied the ancient 
votaries of political science. 

“Aristotle, Plato, Cicero, do not begin with this 
question. Their works are mainly occupied with the 
discussion of the question. Who shall govern? The 


AND SELF-GOVERNMENT. 


61 


safety of the state is their principal problem; the 
safety of the individual is one of our greatest. No 
ancient, therefore, doubted the extent of supreme 
power. If the people possessed it, no one ever hesi¬ 
tated in allowing to them absolute power over every 
one and everything. If it passed from the people to 
a few, or was usurped by one, they considered, in 
many cases, the acquisition of power unlawful, but 
never doubted its unlimited extent. Hence, in Grreece 
and Home the apparently inconsistent, yet, in reality, 
natural sudden transitions from entirely or partially 
popular governments to absolute monarchies; while, 
in modern states, even in the absolute monarchies, 
there exists a certain acknowledgment of a public 
law of individual rights, of the idea that the state, 
after all, is for the protection of the individual, how¬ 
ever ill-conceived the means to obtain this object may 
be. 

“ The idea that the Eoman people gave to them¬ 
selves, or had a right to give to themselves, their 
emperors, was never entirely abandoned, though the 
soldiery arrogated to themselves the power of electing 
the masters. ... Yet the moment that the emperor 
was established on his throne, no one doubted his 
right to the absolute supreme power, with whatever 
violence it was used.^ 


® This was written in the year 1837. Since then, events have 
occurred in France which may well cause the reader to reflect 
whether, after all, the author was entirely correct in drawing this 
peculiar line between antiquity and modern times. All I can say 
in this place is, that the political movements in France resemble the 
VOL. I.—6 



62 


ON CIVIL LIBERTY 


“ Liberty, with the ancients, consisted materially 
in the degree of participation in government, ‘ where 
all are in turn the ruled and the rulers.’ Liberty, 
with the moderns, consists less in the forms of au¬ 
thority, which are with them but means to obtain 
the protection of the individual, and the undisturbed 
action of society in its minor and larger circles. 
’Exfi;> 5 pia, indeed, frequently signifies with the Greek 
political writers, equality; that is absolute equality, 
and iaotvis, equality as well as ixrv^spla, are terms 
actually used for democracy,by which was under¬ 
stood what we term democratic absolutism, or un¬ 
limited, despotic power in the demos, which, prac¬ 
tically, can only mean the majority, without any 
guarantee of any rights. It was, therefore, perfectly 
consistent that the Greeks aimed at perfect liberty in 
perfect equality, as Aristotle states, not even allow¬ 
ing a difference on account of talent and virtue; so 
that they give the the lot, as the true charac¬ 

teristic of democracy. They were consistently led to 
the lot; in seeking for liberty, that is the highest 
enjoyment and manifestation of reason and will, or 
self-determination—they were led to its very nega¬ 
tion and annihilation—to the lot, that is to chance. 


dire imperial times of Rome just so far as the French, or rather the 
Napoleonists among them, step out of the broad path of modern 
political civilization, actually courting a comparison with imperial 
Rome, and that this renewed imperial period will be nothing but a 
phase in the long chain of political revulsions and ruptures of 
France. The phase will not be of long duration ; and, after it will 
have passed, it will serve as an additional proof of our position. 

^ Plato, Gorg. 39. 



AND SELF-GOVERNMENT. 


63 


Not only were magistrates, but even generals and 
orators determined by lot.”® 

Had tbe ancients possessed other free states than 
city-states, they would have been forced out of this 
position, but there were no states in antiquity, if 
we take the term in the adaptation in which we use 
it, when we mean sovereign political societies spread¬ 
ing over extensive territories and forming an organic 
legal whole. Even the vast monarchies of ancient 
Asia were conglomerated conquests with much of 
what has just been called a city-state. Nineveh, 
Babylon, were mighty cities that swayed over vast 
dominions as mistresses, but did not form part of a 
general State in the modern term. 

In the middle ages liberty appears in a different 
phase. The Teutonic spirit of individual independ-^ 
ence was one of the causes which led to the feudal 
system, and frequently prospered under it in rank wil¬ 
derness. There was no state proper in the middle 
ages; the feudal system is justly called a system. 
It was no state; and medieval liberty appears in the 
shape of liberties, of franchises, singly chartered, 
separately conquered, specifically arrogated—each 
society or party obtaining as much as possible, un¬ 
mindful of others, and each denying to others as 
♦much as might be conveniently done. The term 
freedom, therefore, came distinctly to signify in the 
middle ages, not exactly the amount of free action 
allowed to the citizen or guaranteed to the person ^ 
who enjoyed it, but the exemption from burdens and 


6 For the evidence and proof I must refer to the original. 



64 


ON CIVIL LIBERTY 


duties imposed upon others, or exacted, in former 
times. Liberty had not yet acquired a substantive 
meaning, although it need not be mentioned that 
then as well as in ancient times, the principle which 
made noble hearts throb for liberty and independence, 
was the same that has made the modern martyrs of 
liberty mount the scaffold with confidence and reli¬ 
ance on the truth of their cause. 

I am here again obliged to refer to the Political 
Ethics, where I have treated of this peculiarity of the 
middle ages in the chapter on the duties of the 
modern representative contradistinguished to the 
medieval deputy. 

The nearer we approach to modern times the more 
clearly we perceive two movements, which, at first 
glance, would appear to be destructive the one to 
the other. On the one hand states, in the present 
sense of the term, are formed. There is a distinct 
period in the history of our race, which may be aptly 
called the period of nationalization. Tribes, frag¬ 
ments, separate political societies are united into 
nations, and politically they appear more and more 
as states. It is one of the many fortunate occur¬ 
rences which have fallen to England in the course of 
her history, that she became nationalized at a com¬ 
paratively very early period. The feudal system * 
was introduced at a late period, and as a royal 
measure. The king made the Norman-English 
nobility. The nobility did not make the king. The 
English nobility, therefore, could not resist the na¬ 
tional movement and consolidation of the people into 
a nation, as it did on the continent, and, the crown 


AND SELF-GOVERNMENT. 


65 


thus not being obliged to gather all possible strength, 
in order to be able to subdue the baronial power, 
had not the opportunity to pass over into the con¬ 
centrated principate, which was one of the political 
phases in every other jmrt of Europe.® 

On the other hand, we observe that the priceless ^ 
individual value which Christianity gives to each 
human being, by making him an individually respon¬ 
sible being, ivith the highest duties and the highest 
privileges; together with advancing civilization, in 
a great measure produced by itself—the Teutonic 
spirit of personal independence, connected not a 
little with the less impressionable, and, therefore, 
more tenacious, and sometimes dogged character of 
the Teutonic—all these combinedly, developed more 
and more the idea of individual rights, and the desire 
of protecting them. 

These two facts have materially influenced the 

® The history of no nation reminds the student so frequently of 
tlie fact that Ilis ways are not our ways, as that of England. 
Many events which have brought ruin elsewhere, served in the end 
to obtain greater liberty and a higher nationality. The fact that 
the Norman nobility in England was the creature of the king—for ^ 
this, doubtless, it was, although they came as Norman noblemen to 
the field of Hastings—is one of these remarkable circumstances. 

The English civil wars, the fact that most of England’s monarchs 
have been indifferent persons, and that but one truly great man has 
been among her kings, the inhospitable climate, wdiich was treated 
by the people like a gauntlet thrown dowm by Nature, and they 
developed .that wdiole wmrld of domestic comfort and well-being, 
known nowhere else, and of such important influence upon all her 
political life ; her limited territory; her repeated change of lan¬ 
guage ; her early conquests—these are some items of a list wdiich 
might easily be extended. 

6'"’ 



66 


ON CIVIL LIBERTY 


development of modern liberty, that liberty wliicli 
we call our own. The progress we value so much 
was greatly retarded on the continent by an historical 
process whifch was universal among the nations of 
Europe, excepting those of Sclavonic origin, because 
they had not yet entered the lists of civilization. 

The feudal system, of far greater power on the 
* continent than in England, interfered with the pro¬ 
cess of nationalization and the formation of states 
proper. The people had risen to a higher position, a 
higher consciousness of rights, and the inhabitants of 
the cities had generally found the baronial element 
hostile to them. The consequence was, that the 
crowns and the people united to break the power of 
the baron. But in the same degree as the struggle 
was tenacious, and the crown had used stronger 
power to subdue the feudal lord, it found itself un¬ 
shackled when the struggle was over, and easily 
domineered over both, the people and the lord. Then 
came the time of absorbing regal power, of centrali¬ 
zation and monarchical absolutism, of government- 
states, as Niebuhr calls them. The liberties of the 
middle ages were gone; the principles of self-govern¬ 
ment were allowed to exist nowhere; and we find,at 
the present period only, the whole of the European 
■ continent, with the exception of Eussia, as a matter 
of course, engaged in an arduous struggle to regain 
liberty, or rather to establish modern freedom. 
Everywhere the first ideas of the new liberty were 
taken from England, and, later, from the United 
States. The desire of possessing a well-guaranteed 
political liberty and enjoyment of free action, was 


AND SELF-GOVERNMENT. 


67 


kindled on the European continent by the example 
of England. The course which we observe in France, 
from Montesquieu, who, in his brilliant work on the 
Spirit of Laws, has chiefly England in view as a 
model, to the question at the beginning of the first 
French revolution, whether the principles of British 
liberty should be adopted, was virtually repeated 
everywhere. The representative principle, the trial 
by jury, the liberty of the press, taxation and appro¬ 
priations by the people’s representatives, the division 
of power, the habeas corpus principle, publicity, and 
whatever else was prominent in that liberty peculiar 
to the Anglican race, whether it had originated mth 
it, or had been retained by it when elsewhere it had 
been lost in the general shipwreck of freedom, was 
longed for by the continental people, insisted on, or 
struggled for. 

It is well, then, to ask ourselves, in what does this 
Anglican liberty consist? The answer is important, 
in a general point of view, as well as because it is the 
broad foundation and framework of our own Ameri¬ 
can liberty. 


68 


ON CIVIL LIBERTY 


CHAPTER V. 

ANGLICAN LIBERTY. 


In order to ascertain in what this peculiar system 
of civil liberty consists, we must examine those 
charters of the whole Anglican tribe, which belong 
to “the times when governments chartered liberty,” 
and to those “ when the people charter governments.” 
We must observe what principles, measures, and gua¬ 
rantees were most insisted upon in periods most dis¬ 
tinguished by an active spirit of liberty, of opposition 
to encroaching power, or of a desire to prune public 
power so as to make it in future better harmonize 
with the claims of individual liberty. We must see 
what it is that the people of England and the people 
of America in solemn political periods have solemnly 
declared their rights and obligations. We must 
study the periods of a vigorous development of 
liberty, and we must weigh Magna Charta, the Peti¬ 
tion of Right, and the Bill of Rights—the three 
statutes which Lord Chatham called the Bible of the 
English constitution. We must inquire into the 
public common law of England, and the common 
law as it has developed itself on this side of the 
Atlantic; and especially into the leading cases of 


AND SELF-GOVERNMENT. 


69 


political and constitutional importance tliat have 
been decided in England and the United States.^ 
We must ponder our great federal pact, with the 
contemporaneous writers on this constitution, and 
the debates which led to its adoption after the failure 
of the original articles of confederation, as well as 
the special charters which were considered peculiarly 
favorable to liberty, such as many of the colonies 
out of which the United States arose. We must 
attentively study the struggles in which the people 
waged their all to preserve their liberties, or to 
obtain new ones, and those periods which, with re¬ 
ference to civil liberty, may be called classical. We 
must analyze the British and our own revolutions, 
and compare them with the political revolutions 
of other nations, and we must study not only the 
outward events, or the ultimate measures, but we 
must probe their genesis, and ascertain how and why 
these things came about, and what the principles 
were for which the chief men engaged in the ardu¬ 
ous task contended. We must mark what it is that 
those nations wish to introduce among themselves, 
that are longing for freedom similar to that which 
we enjoy. We must test which of the many insti¬ 
tutions peculiar to our tribe, have proved in the 


^ A chronological table of the leading cases in England and the 
United States, by which great constitutional principles or essential 
individual rights have been settled and sown like a spreading, self- 
increasing plant, would be highly instructive, and show how much 
we owe to the growth of liberty, and how much this growth is 
owing to the husbanding of practical cases in the spirit of 
freedom. 



70 


ON CIVIL LII3EKTY 


course of time as real props of freedom, or most 
])rolific in sliooting forth new branches. We must 
read the best witers on law, history, and political 
philosophy with reference to these subjects, and 
observe the process of spreading liberty. We 
must note which are the most fruitful principles of 
Anglican self-government in the widening colonies, 
north and south of the equator; and examine our 
own lives as citizens of the freest land, as well as 
the great process of expansion of liberty with our¬ 
selves. We ought clearly to bring before our minds 
those guarantees, which invariably are the main 
points of assault when the attempt is made to batter 
the ramparts of chul liberty and bring the gallant 
garrison to surrender. And lastly, we ought to study 
the course of despotism; for the physiologist learns 
as much from pathology as from a body in vigorous 
health. 

We call this liberty Anglican freedom, not be¬ 
cause we think that it ought to be restricted to the 
Anglican tribe, or will or can be so; but simply, 
because it has been evolved first and chiefly by this 
tribe, and because we must contradistinguish it to 
Gallican liberty as the sequel will show.^ Nor is it 


2 In the year 1848, I published, in an American Journal, a paper 
headed Anglican and Gallican Liberty, in which I indicated several 
views which have been farther developed in the present work, A 
distinguished German criminalist and publicist did me the honor 
of publishing a German translation of this paper; in which, how¬ 
ever, he says that what I have called Anglican liberty is more 
generally called Germanic liberty. This is an error. I allow that 
the original Teutonic spirit of individual independence, and the 
anti-Celtic spirit of being swayed by masses, largely enters into 




AND SELF-GOVERNMENT. 


71 


maintained that all that is included in Anglican 
liberty is of especial Anglican origin. Liberty is 
one of the wreaths of humanity, and in all liberty 
tliere must be a large fund of universal humanity, as 
all cvdtivated languages must agree in embodying 
the most important principles of intellectual analysis 
and combination; and as Grecian architecture does 
not contain exclusively v/hat the Greeks originated, 
and is not, on account of its very humanity, restricted 
to Greece. Still, we call it Greek architecture, and 
we do so with propriety; for it was- in Greece that 
that column and capital were developed Avhich is 
found everywhere with civilized man, has passed 
over from a pagan world into Christian civilization, 
and is seen wherever the bible is carried. 

Now Avhat we call Anglican liberty, are the gua¬ 
rantees which our tribe has elaborated, as guarantees 
of those rights which experience has shown to bo 
most exposed to the danger of attack by the strong¬ 
est power in the state, namely, the executive, or as 


what I have termed Anglican liberty; but this is a system of civil 
liberty which has developed itself independent upon all other Ten-' 
tonic nations, has been increasing while nearly all the other Teutonic 
nations lost their liberty, and of wliich unfortunately the Germans, 
who ought to be supposed the most Germanic of the Germanic 
tribes, have nothing, except what they may have left at present of 
the late attempts of engrafting anew principles or guarantees of 
liberty on their polities, which had become more and more a copy 
of French centralization. This is not the place to discuss the sub¬ 
ject of so called Germanic liberty. All that is necessary here to 
state, is that, wliat is called Anglican liberty is, as was said before, 
a body of guarantees which, as an entire system, lias been elabo¬ 
rated by the Anglican tribe, and is peculiar to this tribe, unless 
imitated by others. 



72 


ON CIVIL LIBERTY 


most important to a frame of government wliicli will 
be least liable to generate these dangers, and also 
most important to the essential yet weaker branches 
of government. It consists in the civil guarantees 
of those principles which are most favorable to a 
manly individual independence and ungrudged enjoy¬ 
ment of individual humanity; and, those guarantees 
which insure the people, meaning the totality of the 
individuals as a unit, or, the nation, against being 
driven fjjom the pursuit of those high aims which 
have been assigned to it by Providence as a nation, 
or as a united people. Where the one or the other 
is omitted, or exclusively pursued, there is no full 
liberty. If the word people be taken as never 
meaning anything else than a unit, a widely extended 
and vigorous action of that unit may exist indeed— 
blinding ambition may be enjoyed, but it is no 
liberty; if, on the other hand, the term people is 
never taken in any other sense than a mere term of 
brevity, and for the impossible enumeration of all 
individuals, without inherent connection, the conse¬ 
quence must be a sejunctive egotism which loses the 
very power of protecting the individual rights and 
liberties. 

These guarantees, then, as we acknowledge them 
in the period of civil development in which we live, 
and as far as they are common to the whole Anglican 
tribe, and, if of a more general character, are still 
inseparably interwoven with what is peculiar to the 
tribe, we call Anglican liberty. These guarantees 
and checks I now proceed to enumerate. 


AND SELF-GOVERNMENT. 


73 


CHAPTER VI. 

NATIONAL INDEPENDENCE. PERSONAL LIBERTY. 

1. It is impossible to imagine liberty in its fulness, 
if the people as a totality, the country, the nation, 
whatever name may be preferred, or its government, 
is not independent on foreign interference. The 
country must have what the Greeks called autonomy/ 
This implies, that the country must have the right, 
and, of course, the power, of establishing that govern¬ 
ment which it considers best, without interference 
from without or pressure from above. No foreigner 
must dictate; no extra-governmental principle, no 
divine right or “ principle of legitimacy” must act in 
the choice and foundation of the government; no 
claim superior to that of the people’s, that is, national 
sovereignty must be allowed,* This independence 
or national self-government farther implies that, the 
civil government of free choice or free acquiescence 
being established, no influence from without, besides 
that of freely acknowledged justice, fairness, and mo¬ 
rality, must be admitted. There must then be the 
requisite strength to resist when necessary. While 


* Political Ethics, chapter on Sovereigntj. 
VOL. L—7 



74 


ON CIVIL LIBERTY 


the author is setting down these remarks, the news 
is reaching us of the manly declaration made in the 
British commons, by the minister of foreign affairs, 
lord Palmerston, that the united calls of all the con¬ 
tinental powers would be utterly insufficient to give 
up or to drive from the British territory those politi¬ 
cal exiles who have sought an asylum on English 
soil, and of the ready support given by the press to 
the spokesman of the nation. Even the French, so 
far as they are allowed at the present untoward con¬ 
junction to express themselves, applaud this declara¬ 
tion as a proof of British freedom. The Helvetic 
cantons, on the other hand, are forced to yield to 
the demands even of an Austrian government; 
and the worried republic of Switzerland, so far as 
this goes, cannot be said to be free. The history 
of the nineteenth century, but especially that of 
our own age, is full of instances of the interference 
with the autonomy of nations or states. Italy, Ger¬ 
many, especially Hessia, Spain, Hungary, furnish 
numerous instances. Cases may occur, indeed, in 
which foreign interference becomes imperative. All 
we can then say is, that the people’s liberty so far is 
gone, and must be recovered. No one will maintain 
that interference with Turkish affairs at the present 
time is wrong in those powers who resist Eussian in¬ 
fluence in that quarter, but no one will say either that 
Turkey enjoys full autonomy. The very existence 
of Turkey depends upon foreign sufferance. 

On the other hand, it must be remembered that this 
unstinted autonomy is greatly endangered at home-/'^ 
by interfering with the domestic affairs of foreigners. 



AND SELF-GOVERNMENT. 


The opinion, therefore, urged by Washington, that 
we should keep ourselves aloof from foreign poli¬ 
tics, is of far greater weight than those believe who 
take it merely with reference to foreign alliances 
and ensuing wars. The interference need not neces¬ 
sarily proceed from government. Petitions, affect-’ 
ing foreign public measures or institutions, and 
coming from large bodies, or even committees sent 
to express the approval of a foreign government, of 
which we have had a recent and most remarkable 
instance,^ are reprehensible on the same ground. 

It is one of the reasons why a broadcast liberty 
and national development was so difficult in the 
middle ages, that the pope, in the times of his highest 
power, could interfere with the autonomy of states.* 
I do not discuss here whether this was not salutary 
at times. Gregory the Seventh was a great, and, 
probably, a necessary man; but where civil liberty 

2 The address and declaration of four thousand British mer¬ 
chants, presented in the month of April, 1853, to the emperor of 
the French, will forever remain a striking proof of British liberty; 
for in every other European country the government would have 
imprisoned every signer, if indeed the police had not nipped the 
petition in the bud; and it will also forever remain a testimony how 
far p,eople can forget themselves and their national character when 
funds are believed to be endangered or capital is desired to be placed 
advantageously. But I have alluded to it in the text, as an instance, 
only, of popular interference with foreign governments, doubtless 
the most remarkable instance of the kind on record. Whether the 
whole proceeding was “not far short of high treason,” as lord 
Campbell stigmatized it in the house of lords, may be left undecided. 

It certainly would have been treated as such during some periods 
of English history, and must be treated by all right-minded men of 
the present period as a most unworthy procedure. 



76 


ON CIVIL LIBERTY 


is the object, as it is now with civilized nations, this 
medieval interference of the pope would be an 
abridgment of it, just as much as the Austrian influ¬ 
ence in the States of the Church is an abridgment of 
their independence at present. 

It is a remarkable feature in the history of England, 
that even in her most catholic times the people were 
more jealous of papal interference by legates or other 
means, than any other nation, unless we except the 
Germans, when their emperors were in open war with 
the popes. This was, however, transitory, while in 
England intercourse with the papal see was legally 
restricted and actually made penal. 

2. Civil liberty requires firm guarantees of indi- 
‘ vidual liberty, and among these there is none more 
important than the guarantee of personal liberty, or 
the great habeas corpus principle, and the prohibi¬ 
tion of “ general warrants” of arrest of persons. 

To protect the individual against the interference 
with personal liberty by the power-holder is one of 
the elementary requisites of all freedom, and one of 
the most difficult problems to be solved in practical 
politics. If any one could doubt the difficulty, his¬ 
tory would soon convince him of the fact. The 
English and Americans safely guard themselves 
against illegal arrest; but a long and ardent struggle 
in England was necessary to obtain this simple 
element, and the ramparts around personal liberty, 
now happily existing, would soon be disregarded, 
should the people, by a real prava negligentia malo- 
rum, ever lose sight of this primary requisite. 

The means by which Anglican liberty secures 



AND SELF-GOVERNMENT. 


77 


personal liberty are threefold: the principle that 
every man’s house is his castle, the prohibition of 
general warrants, and the habeas corpus act. 

Every man’s house is his castle. It is a principle 
evolved by the common law of the land itself, and is 
exhibited in a yet stronger light in the Latin ver¬ 
sion, which is, Domus sua enique est tutissimum 
refugium, and Nemo de domo sua extrahi debet, 
which led the great Chatham, when speaking on 
general warrants, to pronounce that passage with 
which now every English and American schoolboy 
has become familiar through his Reader. “Every 
man’s house,” he said, “ is called his castle. Why ? 
Because it is surrounded by a moat, or defended by 
a wall? No. It may be a straw-built hut; the 
wind may whistle around it, the rain may enter it, 
but the king cannot.” 

Accordingly, no man’s house can be forcibly 
opened, or he or his goods be carried away after it 
has thus been forced, except in cases of felony,- and 
then the sheriff must be furnished with a warrant, 
and take great care lest he commit a trespass. This 
principle is jealously insisted upon. It has been but 
recently decided in England, that although a house 
may have been unlawfully erected on a common, 
and every injured commoner may pull it down, he 
is nevertheless not justified in doing so if there are 
actually people in it. 

There have been nations, indeed, enjoying a high 
degree of liberty, without this law maxim; but the 
question in this place is even less about the decided 
advantages, arising to freemen from the existence of 


78 


ON CIVIL LIBERTY 


this principle, than about the sturdiness of the law 
and its independent development, that could evolve 
and establish this bold maxim. It must be a manly 
race of freedom-loving people, whose own common 
law could deposit such fruitful soil. For, it must be 
observed, that this sterling maxim was not esta¬ 
blished, and is not maintained, by a sejunctive or a 
law-defying race. The Mainots eonsidered their 
Lacediemonian mountain fastnesses as their castles 
too, during the whole Turkish reign in Greece; the 
feudal baron braved authority and law in his castle, 
but the English maxim was settled by a highly con¬ 
junctive, a nationalized people, and at the same time 
when law and general government extended more 
and more over the land. It is insisted on in the 
' most crowded city the world has ever seen, with the 
same jealousy as in a lonely mountain dwelling; it 
is carried out, not by retainers and in a state of war 
made permanent, but by the law, which itself has 
given birth to it. The law itself says: Be a man, 
thou shalt be sovereign in thy house. It is this 
spirit which brought forth the maxim, and the spirit 
which it necessarily nourishes, that makes it im¬ 
portant. 

It is its direct antagonism to a mere police 
government, its bold acknowledgment of individual 
security opposite to government, it is its close rela¬ 
tionship to self-government, which give so much 
dignity to this guarantee. To see its value, we need 
only throw a glance at the continental police, how it 
enters at night or in the day, any house or room, 
breaks open any drawer, seizes papers or anything 



AND SELF-GOVERNMENT. 


79 


it deems fit, without any other warrant than the 
police hat, coat and button. 

Nor must we believe that the maxim is preserved 
as a constitutional rarity, and not as a living principle. 
As late as the month of June, 1853, a bill was before 
the house of commons, proposing some guarantee 
against property of nuns and monks being too 
easily withdrawn from relations, and that certain 
olficers should have the right to enter nunneries 
from eight, A. M. to eight o’clock, P. M., provided 
that they had strong suspicion that an inmate was 
retained against her will. The leading minister of 
the crown in the commons, lord John Eussell, op¬ 
posed the bil], and said: “ Pass this bill and where 
will be the boasted safety of our houses. It would 
establish general tyranny.” 

The prohibition of “ general warrants.” The war¬ 
rant is the paper which justifies the arresting person 
to commit so grave an act as depriving a citizen, or 
alien, of personal liberty. It is important, therefore, 
to know who has the right to issue such warrants, 
against whom it may be done, and how it must be 
done, in order to protect the individual against arbi¬ 
trary police measures. The Anglican race has been 
so exact and minute regarding this subject, that the 
whole theory of the warrant may be said to be pecu¬ 
liarly Anglican, and a great self-grown institution. 
“ A warlant,” the books say, “ to deprive a citizen of 
his personal liberty should be in writing, and ought 
to show the authority of the person who makes it, 
the act which is authorized to be done, the name or 
description of the party who is authorized to execute 


80 


ON CIVIL LIBEETY 


it, and of the party against whom it is made; and, in 
criminal cases, the grounds upon which it is made.” 
The warrant should name the person against whom 
it is directed; if it does not, it is called a general 
warrant, and Anglican liberty does not allow it.^ 
AYhere it is allowed there is police government, but 
not the government of real freemen. It is necessary 
that the person who executes the warrant be named 
in it. Otherwise the injured citizen, in case of illegal 
arrest, would not know whom he should make re¬ 
sponsible ; but if the person be named, he is answer- 
able, according to the Anglican principle that every 
‘officer remains answerable for the legality of all his 
acts, no matter who directed them to be done. In¬ 
deed, we may say the special warrant is a death blow 
to police government. 

The constitution of the United States demands 
that “no warrants shall issue but upon probable 
cause, supported by oath or affirmation, and particu¬ 
larly describing the place to be searched, and the 
persons or things to be seized, (fee.”"* 

The warrant is held to be so important an element 
of civil liberty, that a defective warrant is considered 


3 A warrant to apprehend all persons suspected, or all persons 
guilty, &c., «S:c., is illegal. The person, against whom the warrant 
runs, ought to be pointed out. The law on this momentous sub¬ 
ject was laid down by lord Mansfield in the case of Moneys. Leach, 
3 Bur. 1742, where the “general warrant” which had been in use 
since the revolution, directing the officers to apprehend the 
“authors, printers and publishers” of the famous No. 45 of the 
North Briton, was held to be illegal and void. 

“ The reader will find a copy of the Constitution of the United 
States in the appendix. 




AND SELF-GOVERNMENT. 


81 


by tlie common law of England and America one of 
the reasons wbicli reduce tlie killing of an officer 
from murder to manslaughter. The reader will see 
this from the following passage, which I copy from a 
work of high authority both here and in England. 
I give the passage entire, because it relates wholly 
to individual liberty, and I shall have to recur to it.^ 
The learned jurist says: 

“ Though the killing of an officer of justice, while 
in the regular execution of his duty, knowing him to 
be an officer, and with intent to resist him in such 
exercise of duty, is murder; the law in that case im¬ 
plying malice; yet where the process is defective or 
illegal, or is executed in an illegal manner, the killing 
is only manslaughter, unless circumstances appear, to 
show express malice; and then it is murder. Thus, 
the killing will be reduced to manslaughter, if it be 
shown in evidence that it was done in the act of pro¬ 
tecting the slayer against an arrest by an officer acting 
beyond the limits of his precinct; or, by an assistant, 
not in the presence of the officer; or, by virtue of a 
warrant essentially defective in describing either the 
person accused, or the offence; or, where the party 
had no notice, either expressly, or from the circum¬ 
stances of the case, that a lawful arrest was intended; 
but, on the contrary, honestly believed that his liberty 
was assailed without any pretence of legal authority; 

6 This is § 128 of Vol. III. of Dr. Greenleaf on Evidence, which I 
have copied by the permission of my esteemed and distinguished 
friend. I have left out all the legal references. The professional 
lav?yer is acquainted with the book, and the references would be 
important to him alone. 



82 


ox CIVIL LIBERTY 


or, where the arrest attempted, though for a felony, 
was not only without warrant, but without hue and 
cry, or fresh pursuit; or, being for a misdemeanor 
only, was not made flagrante dejicto; or, where the 
party was on any other ground, not legally liable to 
be arrested or imprisoned. So, if the arrest, though 
the party were legally liable, was made in violation 
of law, as, by breaking open the outer door or win¬ 
dow of the party’s dwelling-house, on civil process; 
for such process does not justify the breaking of the 
dwelling-house, to make an original arrest; or, by 
breaking the outer door or window, on criminal pro¬ 
cess, without previous notice given of his business, 
with demand of admission, or something equivalent 
thereto, and a refusal.” 

The Habeas Corpus Act. This famous act of par¬ 
liament was passed under Charles the Second, and is 
intended to insure to an arrested person, whether by 
warrant or on the spot, that at his demand he be 
' brought, by the person detaining him, before a judge, 
who may liberate him, bail him, or remand him, no 
matter at whose command or for what reasons the 
prisoner is detained. It allows of no “ administrative 
arrests,” as extra-judicial arrests are called in France, 
or imprisonment for reasons of state. The habeas 
corpus act farther insures a speedy trial, a trial 
by the law of the land and the lawful court— 
three points of the last importance. It moreover 
guarantees that the prisoner know for what he is 
arrested, and may properly prepare for trial. The 
habeas corpus a(^t did by no means first establish all 
these principles, but numberless attempts to secure 



AND SELF-GOVEKNMEXT. 


88 


tliem had failed, and the act may be considered as the 
ultimate result of a long struggle between law and 
individual on the one hand, and power on the other. 
The history of this act is interesting and symptomatic.® 
The constitution of the United States prohibits the 
suspension of the habeas corpus act, “ unless when,' 
in cases of rebellion or invasion, the public safety 
may require itand Alexander Hamilton says, in 
the Federalist “ The establishment of the writ of 
habeas corpus, the prohibition of ex post facto laws 
and of titles of nobility, to which we have no cor¬ 
responding provisions in our constitution, are perhaps 
greater securities to liberty than any it contains 
and, with reference to the first two, he justly adds the 
words of “ the judicious Blackstone.”® 

All our state constitutions have adopted these im¬ 
portant principles. The very opposite of this gua¬ 
rantee was the “ lettre de cachet,” or is the arbitrary 
imprisonment at present, in France. 

There was in England, until within a recent date, 
a remarkable deviation from the principles of personal 
liberty—the impressment. The crown assumed the 
right to force any able-bodied man on board a man- 
of-war, to serve there as sailor. There has always 
been a great deal of doubt about this arrogated 
privilege of the crown, and, generally, sailors only 
were taken, chiefly in times of war and when no 
hands would freely enlist. Every friend of liberty 


6 The appendix contains the Habeas Corpus Act. 

7 Paper, No. LXXXIV. 

8 Blackstone’s Commentaries, vol. i. page 136.—Note, in the 
Federalist. 



84 


ON CIVIL LIBERTY 


will rejoice that the present administration has taken 
in hand a new plan of manning the navy, by which 
this blemish will be removed.® 


9 The plan has not yet been published, but one of the ministers, 
'sir James Graham, said in the commons, in April, 1853: 

“ The first point on which all the authorities consulted were agreed 
is, that whatever measures are taken must rely for success on the 
voluntary acceptance of them by the seamen, and that any attempt 
to introduce a coercive-mode of enlistment would be followed by 
mischievous consequences and failure.” 




AND SELF-GOVERNMENT. 


85 


CIIAPTEE VII. 

BAIL. PENAL TRIAL. 

8. Connected with the guarantees of personal 
liberty, treated of in the foregoing chapter, is the 
bail. 

The law of all nations not wholly depraved in a 
political point of view, adopts the principle that a 
man shall be held innocent until proved by process 
of law to be otherwise. In fact, the very idea of a 
trial implies as much. Theoretically, at least, this is 
acknowledged by all civilized nations, although often 
the way in which things are actually carried on, and 
in many countries the very mode of trying itself, are 
practical denials of the principle. But even in the 
freest country there is this painful yet unavoidable 
contradiction, that while we hold every person inno¬ 
cent until by lawful trial proved to be guilty, we 
must arrest a person in order to bring him to a 
penal trial; and, although by the law he is still con¬ 
sidered innocent, he must be deprived of personal 
liberty until his trial can take place, which it is 
impossible to let always follow instantly upon the 
arrest. To mitigate this harshness as much as pos¬ 
sible, free nations guarantee the principle of bailing 
VOL. L—8 


86 


ON CIVIL LIBERTY 


in all cases in wliich. the loss of the bailed sum may 
be considered as a more serious evil than the possible 
punishment. The amount of bail must depend upon 
the seriousness of the charge, and also upon the 
means of the charged person. If judges were allowed 
to demand exorbitant bail, they might defeat the 
action of this principle in every practical case. It 
was enacted, therefore, in the first year of William 
and Mary,’ and has been adopted in all our constitu¬ 
tions, that no “ excessive bail” shall be required. The 
nature of the case admits of no more exact term; but, 
with an impeachment hanging over the judges, should 
the principle thus solemnly pronounced be disre¬ 
garded, it has worked well. Indeed, there are fre¬ 
quent cases in the United States in which this principle 
is abused, and society is endangered, because persons 
are bailed who are under the heaviest charges, and 
have thus an opportunity of escape if they know 
themselves guilty. As this can take place only Avith 
persons who have large sums at their disposal, either 
in their own possession or in that of their friends, and 
as liberty demands first of all the foundation of justiee, 
it is evident that this abuse of bail works as much 
against essential liberty as the proper use of bail 
guarantees it. We ought, everywhere, to return to 
the principle of distinguishing transgressions of the 
law into bailable offences and offences for the sus¬ 
pected commission of which the judge can take no 
bail. These are especially those offences for the pun¬ 
ishment of which no equivalent in money can be 


Willi.am and Mary, stat. ii. c. 2. 



AND SELF-GOVEENMENT. 


87 


imagined, for instance death or imprisonment for life, 
and those offences which put the offender into the 
possession of the sum required for the bail. 

It has been objected to the bail that it works 
unjustly. It temporarily deals with so precious a 
thing as personal liberty according to possession of 
money; but it must be remembered that the whole 
arrest before trial is an evil of absolute necessity, and 
the more we can limit it the better. 

Liberty requires bail, and that it be extended as 
far as possible; and it requires likewise that it be not 
extended to all offences, and that substantial bail only 
be accepted. 

4. Another guarantee, of the last importance, is 
a well-secured penal trial, hedged in with an efficient 
protection of the indicted person, the certainty of his 
defence, a distinct indictment charging a distinct act, 
the duty of proving this act on the part of govern¬ 
ment, and not the duty of proving innocence on the 
part of the prisoner, the fairness of the trial by peers 
of the prisoner, the soundness of the rules of evidence, 
the publicity of the trial, the accusatorial (and not ’ 
the inquisitorial) process, the certainty of the law to 
be applied, together with speed and utter impartiality, 
and an absolute verdict. It is moreover necessary 
that the preparatory process be as little vexatious 
as possible. 

When a person is penally indicted, he individually 
forms one party, and society, the state, the government 
forms the other. It is evident that unless very strong 
and distinct guarantees of protection are given to the 
former, that he be subjected to a fair trial, and that 


88 


ON CIVIL LIBERTY 


nothing be adjudged to him but what the law already 
existing demands and allows, there can be no secu¬ 
rity against oppression. For government is a power, 
and, like every power in existence, it is desirous of 
carrying its point—a desire which increases in inten¬ 
sity the greater the difficulties are which it finds in 
its way. 

Hence it is that modern free nations ascribe so 
great an importance to well regulated and carefully 
elaborated penal trials. Montesquieu, after having 
given his definitions of what he calls philosophical 
liberty, and of political liberty, which, as we have 
seen, he says, consists in security, continues thus: 
“ This security is never more attacked than in public 
and private accusations. It is, therefore, upon the 
excellence of the criminal laws that chiefly the liberty 
of the citizen depends.”^ Although we consider this 
opinion far too general, it nevertheless shows how 
great a value Montesquieu set on a well-guarded 
penal trial, and he bears us out in considering it an 
essential element of modern liberty. The concluding 
words of Mr. Mittermaier’s work on the Penal Pro¬ 
cess of England, Scotland, and the United States, are: 
“ It will be more and more aeknowledged how true 
it is that the penal legislation is the keystone of a 
nation’s public law.”^ 

This passage of the German criminalist expresses 
the truth more accurately than the quoted dictum of 


2 Esprit des Lois, XII. 2, Of the Liberty of the Citizen. 

3 This comprehensive and excellent work was published in Ger¬ 
many, Erlangen, 1851. 



AND SELF-GOVERNMENT. 


89 


Montesquieu. For, although we consider the penal 
trial and penal law in general intimately connected 
with civil liberty, it is nevertheless a fact that a 
sound penal trial is invariably one of the last fruits ^ 
of political civilization, partly because it is one of 
the most difficult subjects to elaborate, and because 
it requires long experience to find the proper mean 
between a due protection of the indicted person 
and an equally due protection of society; partly be¬ 
cause it is one of the most difficult things in all 
spheres of action to induce irritated power to limit 
itself as well as to give to an indicted person the 
full practical benefit of the theoretic sentence, easily 
pronounced like all theory, that the law holds every 
one innocent until proved not to be so. The Roman 
and Athenian penal trials were sadly deficient. The 
English have allowed counsel to the penally indicted 
person only within our memory, while they had 
been long allowed in the United States."* The penal 

It must not be forgotten, however, that, deficient as the penal 
trial of England, without counsel for the defendant, was, it contained 
many guarantees of protection, especially publicity, a fixed law of 
evidence, with the exclusion of hearsay evidence, the jury and the 
neutral position of the judge in consequence of the trial by jury, 
and the strictly accusatorial character of the trial, with the most 
rigid adhesion to the principle of trying a person upon the indict¬ 
ment alone, so that the judge could be, and in later times really 
had been, the protector of the prisoner. Had the trial been in¬ 
quisitorial instead of accusatorial, the absence of counsel for defence 
would have been an enormity. To this enormity Austria has actually 
returned since the beginning of this century. The code promulgated 
by Joseph gave counsel, or a “defensor,” to the prisoner; but, 
although the process remained inquisitorial, the defensor was again 
disallowed. Tlie late revolution re-established him, but whether he 

8* 



90 


ON CIVIL LIBERTY 


trial in the ISTetlierlands was a poor one, when never¬ 
theless, the Netherlanders are allowed on all hands to 
have enjoyed a high degree of civil liberty. It is 
one of the most common facts in history that a na¬ 
tion is more or less advancing in nearly all the 
branches of civilization, while the penal trial and the 
whole penal law remains almost stationary in its bar¬ 
barous inconsistency. The penal trial of France, up 
to the first revolution, remained equally shocking to 
the feelings of humanity and to the laws of legal logic. 

The reason of this apparent inconsistency is that, 
in most cases, penal trials affect personally indivi¬ 
duals who do not belong to the classes which have 
the greatest influence upon legislation. This point is 
especially important in countries where the penal 
trial is not public. People never learn what is going 
on in the houses of justice. Another and great 
reason is that generally lawyers by profession are 
far less interested in the penal branch of the law 
than in the civil. This, again, arises from the double 
fact that the civil law is far more varied and compli¬ 
cated, consequently more attractive to a judicial 
mind, and that the civil cases are far more remunera¬ 
tive. IIow much the difficulty to be solved consti¬ 
tutes the attraction for the lawyer, we may see from 
the fact that very few professional lawyers take an 
interest in the punishment itself. A penal case has 
attraction for them so long as it is undecided, but 


has been disallowed again of late I don’t know. Nor can it be of 
very great importance in a country in which the “state of siege” 
and martial law seem to be permanent. 



AND SELF-GOVERNMENT. 


91 


wliat imprisonment follows, if imprisonment has 
been awarded, interests them little. Very few law¬ 
yers have taken a lead in the reform of criminal 
law and in prison discipline, the noble sir Samuel 
Eoniilly always excepted. 

Among the points which characterize a fair and 
sound penal trial according to our advancement in 
political civilization, we would designate the follow¬ 
ing : No intimidation before the trial or attempts by 
artifice to induce the prisoner to confess; a contri¬ 
vance which protects the citizen even against being 
placed too easily into a state of accusation; the full¬ 
est possible realization of the principle that every 
man is held innocent until proved to be otherwise, 
and bail; a total discarding of the principle that the 
more heinous the imputed crime is, the less ought 
to be the protection of the prisoner, but on the con¬ 
trary the adoption of the reverse; a distinct indict¬ 
ment, and the acquaintance of the prisoner with it, 
sufficiently long before the trial, to give him time 
for preparing the defence; that no one be held to 
incriminate himself; the accusatorial process, with 
jury and publicity, therefore an oral trial and not 
a process in writing; counsel or defensors of the 
prisoner; a distinct theory or law of evidence, and 
no hearsay testimony; a verdict upon evidence alone 
and pronouncing guilty or not guilty; a punishment 
in proportion to the offence and in accordance Avith 
common sense and justice f especially no punitory 


5 Tlie idea expressed by Dr. Paley regarding this point is re¬ 
volting. He says, in his Political Philosophy, that we may chooSe 



92 


ON CIVIL LIBERTY 


imprisonment, wliicb. necessarily must make the 
prisoner worse than he was when he fell into the 
hands of government, nor cautionary imprisonment 
before trial, which by contamination must advance 
the prisoner in his criminality; and that the punish¬ 
ment adapt itself as much as possible to the crime 
and criminality of the offender f that nothing but 
what the law demands or allows be inflicted,^ and 


between two systems, the one with fair punishments always applied, 
the other with very severe punishments occasionally applied. He 
thus degrades penal law, from a law founded above all upon strict 
principles of justice, to a mere matter of prudential expediency, 
putting it on a level with military decimation. 

® Lieber’s Popular Essay on Subjects of Penal Law and on Un- 
intei'rupted Solitary Confinement at Labor, &c. Philadelphia, 1838. 

I have there treated of this all-important subject at some length. 

7 Tiberius Gracchus erected a temple in honor of Liberty, with a 
sum obtained for fines. If the fines were just, there was no incon¬ 
sistency in thus making penal justice build a temple of freedom, 
for liberty demands security and order, and, therefore, penal justice. 

On the other hand, what does a citizen reared in Anglican liberty 
feel when he reads in a simple newspaper article in a French pro¬ 
vincial paper, in 1853, the following? “ The minister of general 
police has just decided that Chapitel, sentenced by the court to six 
months’ imprisonment for having been connected with a secret 
society, and Brayet, sentenced for the same offence to two months’ 
imprisonment, shall be transported to Cayenne for ten ^mars, after 
the expiration of their sentence!” 

The decree of the 8th of December, 1851, not a law, but a mere 
dictatorial order, upon which ten years’ transportation are added by 
way of “rider” to a few months’ imprisonment adjudged by the 
courts of law, is this; 

“ Article 1. Every individual placed under the surveillance of the 
liigh police, Avho shall be found having broken his assigned limits of 
residence, may be transported, by way of general safety, to one of 
the penitentiary colonies, at Cayenne or in Algeria. 

“ The duration of transportation shall be five years or less, and 



AND SELF-GOVERNMENT. 


93 


that all that the law demands be inflicted—no arbi¬ 
trary injudicious pardoning, which is a direct inter¬ 
ference with the government of law. 

The subject of pardoning is so important, espe- 
oially in our country, that I have deemed it advisable 
to add a paper on pardoning, which the reader will 
find in the appendix. ^ 

Perhaps there are no points so important in the 
penal trial in a free country, as the principle that no 
one shall be held to incriminate himself, that the 
indictment as well as the verdict must be definite 
and clear, and that no hearsay evidence be admitted.' 
Certainly none are more essential. 

A great lawyer and excellent man, sir Samuel 
Eomilly, justly says, that if the ascertaining of truth 

ten years or more.” (We translate literally and correctly, whatever 
the reader may think of this sentence, which would be very droll, 
were it not very sad.) 

“Article 2. The same measure shall be applicable to individuals 
found to be guilty of having formed part of a secret society.” 

The French of the last sentence is: individus reconnus conpable 
d'avoir faitpartie d'une socieie secrete. This reconnus (found, acknoAv- 
ledged) is of a sinister import. For the question is, Found by wdiom ? 
Of course not only by the courts, for finding a man guilty by pro¬ 
cess of laAV is in French convahcre. The reconnoitre, therefore, 
was used to include the police, or any one. So that we arrive at 
this striking fact; The despot may add an enormous punishment to 
a legal sentence, as in the cited case, or he may award it, or rather 
the minister of police under him may do it, without trial, upon mere 
police information. Tavo hundred years ago, the English declared 
executive transportation beyond the seas, or deportation, to be an 
unwarranted grievance; and here Ave have it again, no doubt in 
imitation of the Roman imperial times (the saddest in all history), 
in the middle of the nineteenth century. 



94 


ON CIVIL LIBERTY 


and meting ont of justice is the object of the trial, 
no possible objection can be taken against it on 
principle. But there is this difficulty, that if judges 
themselves question, they become deeply interested 
in the success of their own cross-examinations, they 
become biased against the prisoner should he thwart 
them, or turn questions into ridicule. Eomilly 
makes this remark after having actually seen this 
result in France, where it is always done (witness 
Mad. Lafarge’s trial, or any French trial of import¬ 
ance), and certainly often with success.® Or let us 
observe the English some centuries back. 

In the inquisitorial process, it is not only done, 
but the process depends upon it. 

There are other dangers connected with it. An 
accused man cannot feel that perfect equanimity of 
mind which alone might secure his answers against 
suspicion. I know from personal experience how 
galling it is to see your most candid answers rewarded 
with suspicions and renewed questions, if the subject 
is such that you cannot possibly at once clear up all 
doubts. It ought never to be forgotten that the 
accused person labors under considerable disadvant¬ 
ages, merely by the fact that he is accused. Bully¬ 
ing and oppressive judges were common in England 
when the principle was not yet settled that no one 
shall be held to incriminate himself. The times 
of the Stuarts furnish us with many instances of 

® Sir Samuel Romilly’s Memoirs, vol. i. p. 315, 2tl ed., London, 
1840. 



AXD SELF-GOVERNMENT. 


95 


altercations in the court, between the judge and 
the prisoner, and of judicial browbeating to the/ 
detriment of all justice. 

The trial of Elizabeth Grant, the aged and deaf 
baptist woman, who had given a night’s rest under 
her roof to a soldier of Monmouth’s dispersed army, 
under chief-justice Jones,® may serve as an instance. 

It is among other reasons for this very fact of 
prisoners on trial being asked by the French judge 
about the fact at issue, his whereabouts at the time, 
his previous life, and a number of things which 
throw suspicion on the prisoner, although uncon¬ 
nected with the question at issue, that Mr. BGranger 
says, in a work of just repute: “We,” that is the 
French, “have contented ourselves to place a magni¬ 
ficent frontispiece before the ruins of despotism; a 
deceiving monument, whose aspect seduces, but 
which makes one freeze with horror when entered. 
Under liberal appearances, with pompous words of 
juries, public debates, judicial independence, indi¬ 
vidual liberty, we are slowly led to the abuse of all 
these things, and the disregard of all rights; an iron 
rod is used with us, instead of the stafi* of justice.”^® 

There are peculiar reasons against examining the 
prisoner in public trials, and many peculiar to the 
secret trial. Although it cannot be denied that often 
the questioning of the prisoner may shorten the trial 
and lead to condign conviction, which otherwise may 


9 Pbilipps’s State Trials, vol. ii. 214 et seq., and, indeed, in many 
parts of this work. 

Beranger Do la Justice Criminellc de France, Paris, 1818, 
pnge 2. 



96 


ON CIVIL LIBERTY 


not be the result, it is nevertheless right that most, 
perhaps all our state constitutions have adopted this 
principle. It is just; it is dignified; and it is fair. 
The government prosecutes; then let it prove what 
it charges. So soon as this principle is discarded, 
we fall into the dire error of throwing the burden 
of proving innocence wholly or partially on the 
prisoner; while, on the contrary, all the burden 
ought to lie on the government, with all its power, 
to prove the charged facts. Proving an offence and 
fastening it on the offender, is one important point 
in the penal trial; but the method how it is done is 
of equal importance. The Turkish cadi acknow¬ 
ledges the first point only; yet what I have stated is 
not only true with reference to the jural society, it 
is even true in the family and the school. 

It is an interesting fact for the political philosopher 
that, while the Anglican race thus insists on the 
principle of non-self-incrimination, the whole Chinese 
code for that people under a systematic mandarinism 
is pervaded even by the principle of self-accusation 
for all, but especially for the mandarins. 

The principle that on government lies the burden 
of proving the guilt, leads consistently to the other 
principle that the verdict must be definite and 
absolute. Hence these two important facts: The 
verdict must be guilty or not guilty, and no absolutio 
ab instantia, as it is called in some countries of the 
European continent, that is to say, no verdict or 
decision which says, according to the present trial 
we cannot find you guilty, but there is strong suspi- 


AND SELF-GOVERNMENT. 


97 


cion, and we may take you up another time;’* nor 
any “not proven,” as the Scottish trial admits of, 
ought to be permitted. “Not proven,” does not 
indeed allow a second trial, but it expresses: You 
are free, although we have very strong suspicion. 
Secondly, the main principle leads to the fact that 
no man ought to be tried twice for the same oftence. 
This is logical, and is necessary for the security of 
the individual. A person might otherwise be ha¬ 
rassed by the government until ruined. Eepeated 
trials for charges, which the government knows 
very well to be unfounded, are a common means 
resorted to by despotic executives. Frequently such 
procedures have led the persecuted individual to 
compound with government rather than lose all his 
substance. 

The Anglican race, therefore, justly makes it an 
elementary principle of its constitutional law, that 
“ no man shall be tried twice for the same offence.” 

I have said that a fair trial for freemen requires 
that the preparatory steps for the trial be as little 
vexatious as possible. They must also acknow¬ 
ledge the principle of non-incrimination. This* is 
disregarded on the whole of the European continent. 
The free range of police power, the mean tricks 
resorted to by the “instructing” judge or officer, 
before the trial, in order to bring the prisoner 


” The reader will find in the appendix a paper on the subject of 
some continental trials, and the admission of half and quarter 
proof and proportional punishment. 

VOL. I.— 9 



98 


ON CIVIL LIBERTY 


to confession, are almost inconceivable,^^ and they 
are the worse, because applied before the trial, when, 
therefore, the prisoner is not surrounded by those 
protections which the trial itself grants. With re¬ 
ference to this point, and in order to modify what 
I have stated regarding Greek penal trials, I wish to 
mention the interesting fact that “ the prosecutor, in 
Athens, who failed to make good his charge, incur¬ 
red certain penalties, unless he obtained at least one- 
fifth of the votes in his favor. In public suits, he 
forfeited 1,000 drachmae to the state, and could never 
again institute a similar suit. The same punishment 
was incurred if he declined to proceed with the case. 
In private suits, he paid the defendant one-sixth of 
the amount of the disputed property, as a compensa¬ 
tion for the inconvenience he had suffered in person 
or character.” 

Sir Samuel Eomilly had the intention of proposing 
in a similar spirit, a bill by which an acquitted pri¬ 
soner, having been prosecuted for felony, should be 
compensated by the county, at the discretion of the 
court, for loss of time and the many evils endured. 
Indeed, he thought that far more ought to be 
done.^** Leave was given to bring in the compensa- 

>2 This may be amply seen in the reports on French trials, and, 
among other works, in Fenerbach’s collection of German criminal 
trials. 

*3 Herman, Political Antiquit. of Greece, Oxon. 1836, sect. 144, 
where more, and all the necessary authorities can be found. 

Memoirs of the Life of Sir Samuel Romilly, 2d edition, 
London, 1840, vol. ii., page 235. Strange enough; there is an 
English law, 25 George II., sec. 36, according to which prosecutors 



AND SELF-GOVERNMENT. 


99 


tion bill, but it was afterwards withdrawn. It is 
evident that the great difficulty would lie in the fact 
that the discretion of the judge would establish at 
once a distinction between the verdicts, similar to 
that produced by the Scottish “ not guilty” and “ not 
proven.” To compensate, however, all acquitted per¬ 
sons would be very mischievous if we consider how 
many persons are acquitted who nevertheless are 
guilty. Indeed, it might well be asked whether the 
fear of paying compensation would not in some cases 
induce the jury to find more easily a verdict of 
guilty. 

The professional reader may think that I have not 
sufficiently dwelt upon some essential points of a 
sound penal trial, for instance, on publicity, or the 
independence of counsel. He will find, however, 
that these subjects are treated of in other parts of 
this work. The arrangement could not be made 
otherwise. 


are to have the expenses of their prosecution reimbursed, and a 
compensation afforded them for their trouble and loss of time. This 
is evidently to induce people freely to prosecute; but no guarantee 
is given on the other hand against undue prosecution, and a com¬ 
pensation for the trouble and loss of time of the acquitted person. 



100 


ON CIVIL LIBERTY 


CHAPTER yiii. 

HIGH TREASON. 

5. That penal trial which is the most important 
with reference to civil liberty, and in which the ac¬ 
cused individual stands most in need of peculiar pro¬ 
tection by the law, is the trial for treason. 

If a well-guarded penal trial in general forms an 
important element of our liberty, because the indi¬ 
vidual is placed opposite to public power, a carefully 
organized trial for treason is emphatically so. In 
the trial for treason the government is no longer 
theoretically the prosecuting party, as it may be said 
it is in the case of theft or assault, but government 
is the really offended, irritated party, endowed at the 
same time with all the force of the government, to 
annoy, persecute, and often to crush. Governments 
liave, therefore, been most tenacious in retaining 
whatever power they could in the trial for treason; 
and, on the other hand, it is most important for the 
free citizen that, in the trial for treason, he should 
not only enjoy the common protection of a sound 
penal trial, but far greater protection. In despotic 
countries we always find that the little protection 
granted in common criminal trials, is withheld in 
trials for treason; in free countries, at least in 


AND SELF-GOVERNMENT. 


101 


England and the United States, greater protection is 
granted, and more caution demanded, in trials for 
treason than in the common penal process. The 
trial for treason is a gauge of liberty. Tell us how 
they try people for treason, and we will tell you 
whether they are free. It redounds to the glory of 
England that attention was directed to this subject 
from early times, and that guarantees were granted 
to the prisoner indicted for treason, centuries before 
they were allowed to the person suspected of a com¬ 
mon offence; and to that of the United States, that 
they plainly defined the crime of treason, and 
restricted it to narrow limits, in their very constitu¬ 
tion. This great charter says, section III.: 

1. “ Treason against the United States shall con¬ 
sist only in levying war against them, or in adhering 
to their enemies, giving them aid and comfort. No 
person shall be convicted of treason, unless on the 
testimony of two witnesses to the same overt act, or 
confession in open court. 

2. “ Congress shall have power to declare the pun¬ 
ishment of treason; but no attainder of treason shall 
work corruption of blood or forfeiture, except during 
the life of the person attainted.” 

Whether political societies, not so fortunately situ¬ 
ated as ourselves, yet equally prizing civil liberty, 
might safely restrict the crime of treason to such nar¬ 
row limits as the wise and bold framers of our con¬ 
stitution have done, is a subject which belongs to a 
branch of political science that does not occupy us 
here; but it may be asserted that several cases have 
actually occurred in the United States, in which all 
9 * 


102 


ON CIVIL LIBERTY 


nations except the American would have considered 
the provisions of our constitution insufficient, and in 
which nevertheless they have been found adequate. 

We may consider the American law of high trea¬ 
son as the purest in existence, and it shows how 
closely the law of treason is connected with civil 
liberty. Chief-justice Marshall said: “As there is no 
crime which can more excite and agitate the passions 
of men than treason, no charge demands more from 
the tribunal before which it is made a deliberate and 
temperate inquiry. Whether the inquiry be directed 
to the fact or to the law, none can be more solemn, 
none more important to the citizen or to the govern¬ 
ment; none can more affect the safety of both.’’* 

All constitutions of the different American states, 
which mention treason, have the same provision. 
Those that say nothing special about it, have the same 
by law, and in conformity with the principles which 
the respective constitutions lay down regarding penal 
trials.^ None admit of retrospective laws, of legisla¬ 
tive condemnations of individuals, or of attainders. 

The course which the law of treason takes is this: 
At first there exists no law of treason, because the 
crime is not yet separated from other offences, as 


• The Writings of John Marshall, p. 42. Ex parte Bollman and 
Swartwout, 

2 Judge Story says: “A state cannot take cognizance, or punish 
the offence (i. e. treason against the United States); whatever it 
ipfiy do in relation to the offence of treason, committed exclusively 
against itself, if indeed any case can, under the constitution, exist, 
which is not at the same time treason against the United States.” 
Chap. 28, vol. iii. of Commentaries on the Constitution of the United 
States. 



AND SELF-GOVERNMENT. 


103 


indeed the penal and civil laws are not separated in 
the earliest periods. The Chinese code, so minute in 
many respects, mixes the two branches, and debtors 
are treated as criminal offenders, reminding us, in 
this particular, of the early Koman law. When first 
treason comes to be separated from the other ofiences,^ 
it is for the twofold purpose of inflicting more excru¬ 
ciating pains, and of withholding from the trial the 
poor protection which is granted to persons indicted 
for common offences. The dire idea of a crimen 
exceptum gains ground. The reasoning, or rather 
unreasoning, is that the crime is so enormous that the 
criminal ought not to have the same chances of escape, 
thus assuming that the accused, yet to be proved to 
be a criminal, is in fact a criminal, and forgetting, as 
has been indicated before, that the graver the accusa¬ 
tion is, and the severer therefore the punishment, in 
case of established guilt, may be, the safer and more 
guarded ought to be the trial. It is a fearful incon¬ 
sistency, very plain when thus stated, yet we find 
that people continually fall into the same error, even 
in our own days. How often is Lynch law resorted 
to on the very plea that the crime, still a suspected 
one, is so infamous that the regular course of law is 
too slow or too doubtful! The same error prevailed 
regarding witchcraft. The pope declared it a crimen 
exceptum—too abominable to be tried by common 
process. Protestant governments followed the ex¬ 
ample. 

At the same time we find that, at the period of 
which we are 'now speaking, the law of treason is 
vastly extending, and all sorts of offences, either^ 
because considered peculiarly heinous, or because 


104 


ON CIVIL LIBERTY 


peculiarly displeasing to the public power, are drawn 
within the meaning of treason. A list of all the 
offences which at some time or other have been con¬ 
sidered to amount to treason, from the crime of 
“offended divine majesty,” (crimen Isesse majestatis 
divinae,) in which stealing from a church was included, 
to the most trivial common offences, and which I have 
made out for my own use, would astound the reader, 
if this were the place to exhibit it. 

When political civilization advances, and people 
come to understand more clearly the object and use 
of government, as well as the dangers which threaten 
society and the individual, the very opposite course 
takes place. More protection is granted to the per¬ 
son indicted for treason, than in common penal trials, 
and the meaning of treason is more and more nar¬ 
rowed. The definition of treason is made clearer, 
and constructive treason is less and less allowed, until 
we arrive at our own bright law of treason. 

It is thus that the law of treason becomes, as I 
stated before, a symptomatic fact, and is in politics 
what roads, the position of woman, public amuse¬ 
ments, the tenure of land, architecture, habits of 
cleanliness, are in other spheres. They are gauges 
of social advancement. The more I studied this 
subject, the more I became convinced of the instruc¬ 
tion to be derived from the history of the law of 
treason in ancient times, the middle ages, and modern 
periods, and it was my intention to append a paper 
to this work, which should give a survey of the 
whole. When, however, I came to arrange my long 
collected materials, I found, although firmly resolved 
to disregard an author’s partiality for materials of 


AND SELF-GOVERNMENT. 


105 


interest once collected, and to restrict the paper to the 
merest outlines, that it would be impossible to do any 
justice to the subject without allowing to that parti¬ 
cular portion a disproportionally large place. I de¬ 
cided, therefore, to leave the subject for a separate 
work. 

In conclusion I would repeat, experience proves 
that not only are all the guarantees of a fair 
pena]^ trial peculiarly necessary for a fair trial for 
treason, but that it requires additional safeguards; 
and, of the one or the other, the following seem to 
me the most important: 

The indictment must be clear as to facts and time, 
when the indicted act has been committed; 

The prisoner must have the indictment a sufficient 
time before the trial, so as to be able to prepare for it; 

He must have a list of the witnesses against him, 
an equal time beforehand; 

A sufficient time for the trial must be allowed; and 
the prisoner must not be seized, tried, and executed, 
as Cornish was, in 1685, in a week; 

Counsel must be allowed, as a matter of course; 

The judges must be impartial and independent, and 
ample challenges must be allowed; peers must judge. 
Consequently, judges must not be asked by the 
executive, before the trial, what their judgment 
would be if such or such a case should be brought 
before them, as was repeatedly done by the Stuarts; 

Of all trials, hearsay must be excluded from the 
trial for treason; 

Facts, not tendencies; acts, not words or papers 
written by the indicted person, and never allowed to 
leave his desk, must be charged; 


106 


ON CIVIL LIBERTY 


Perfect publicity must take place from beginning 
to end, and reporters must not be excluded; for it is 
no publicity in a populous country that allows only 
some twenty or forty bystanders; 

The trial must be in presence of the prisoner; 

Several witnesses must be required to testify to the 
same fact, and the witnesses for the prisoner must be 
as much upon oath as those for the government; 

Confession, if unconditionally admitted at all, must 
at least be in open court; 

There must be no physical nor psychical torture; 

There must be good witnesses, not known villains 
or acknowledged liars, as Titus Oates, or lord How¬ 
ard against lord KusselL 

The judges must not depend upon the executive; 

Ho evidence must be admitted which is not 
admitted in other trials. 

There must be a fixed punishment; 

There must be no constructive treason; 

And the judges must not be political bodies. 

These guarantees have been elaborated by statute 
and common law, through periods of freedom and 
tyranny, by the Anglican race. The English law 
grants these safeguards, except indeed the last to 
lords, because, according to the principle that every 
one must be tried by his peers, a lord is tried by 
the house of lords. It showed great wisdom that 
the framers of our constitution did not assign the 
trial for treason to the senate,^ as the former French 
constitution appointed the house of peers to be the 


3 All the American trials for treason are collected in Francis 
Wharton’s State Trials of the United States, Philadelphia, 184G. 



AND SELF-GOVERNMENT. 


107 


court for high treason. American impeachments are 
tried indeed by the senate, but it will be observed 
that the American trial of impeachment is not a 
penal trial for offences, but a political institution, 
trying for political capacity. The senate, when sit¬ 
ting as a court to try impeachment, can only remove 
from office, whatever the crime may have been; and 
the impeached person can be penally tried after the 
senate has removed him from office. In its political 
character, then, but in no other point, the American 
impeachment resembles the Athenian ostracism,which 
was likewise a political and not a penal institution. 
The English impeachment is a penal trial. 

The trials for treason going on in many countries 
of the European continent, especially in Naples and 
the Austrian dominions, are fair illustrations ex con- 
verso of what has been stated here.'* 

The trial for treason has been treated of in this 
place because naturally connected with the subject of 
the penal trial in general. Otherwise it would have 
been more properly enumerated among the guarantees 
connected more especially with the general govern¬ 
ment of a free country. We return, therefore, once 
more to the guarantees of individual rights.^ 

^ The reader is probably acquainted with the Right Hon. Mr. 
Gladstone’s pamphlet on Neapolitan trials for treason, published in 
1851. It is but a sample. 

® I would mention for the younger student that when I study 
pervading institutions, or laws and principles which form run¬ 
ning threads through the whole web of history, I find it useful to 
make chronological tables of their chief progresses and reverses. 
They are very suggestive, and strikingly show what we owe to the 
continuity of humah society. None of these tables has been more 
instructive to me than that on the history of the law of treason. 



108 


ON CIVIL LIBERTY 


CHAPTEE IX. 


COMMUNION. LOCOMOTION, EMIGRATION. 


6. The freedom of communion is one of tlie most 
precious and necessary rights of the individual, and 
one of the indispensable elements of all advancing 
humanity—so much so, indeed, that it is one of those 
elements of liberty, which would have never been 
singled out, had not experience shown that it forms 
invariably one of the first objects of attack, when 
arbitrary power wishes to establish itself, and one of 
the first objects of conquest, when an unfree people 
declares itself free. 

I have dwelled on the primordial right of com¬ 
munion in the Political Ethics at great length, and 
endeavored to show that the question is not whether 
free communion or a fettered press be conducive to 
more good, but that everything in the individual 
and in nations depends in a great measure upon 
communion, and that free communion is a pre-exist¬ 
ing condition. The only question is, how to select 
the best government with it, and shielding it, unless, 
indeed, we were speaking of tribes in a state of 
tutelage, ruled over by some highly advanced 
nation. 



\, 


AND SELF-GOVERNMENT. 


109 


In this place we only enumerate freedom of com¬ 
munion as one of the primary elements of civil 
liberty. It is an element of all civil liberty. No 
one can imagine himself free if his communion with 
his fellows is interrupted or submitted to surveil¬ 
lance ; but it is the Anglican race which first esta¬ 
blished it on a large scale, broadly and nationally 
acknowledged. 

Free nations demand and guarantee free commu¬ 
nion of speech, the right of assembling and publicly* 
speaking, for it is communion of speech in this 
form which is peculiarly exposed to abridgment or 
suppression by the public power; they guarantee 
the liberty of the press, and, lastly, the sacredness of 
epistolary communion. 

It is a very striking fact that, although the consti¬ 
tution of the United States distinctly declares that 
the government of the United States shall only have 
the power and authority positively granted in that 
instrument, so that, in a certain respect, it was unne¬ 
cessary to say what the government should not have 
the right to do, still, in the very first article of the 
Additions and Amendments of the Constitution, con¬ 
gress is forbidden to make any “ law respecting an 
establishment of religion, or prohibiting the free 
exercise thereof; or abridging the freedom of speech, 
or of the press, or the right of the people peaceably 
to assemble, and to petition the government for a 
redress of grievances.” 

The reader will keep in mind that the framers of 
our constitution went out of their way and preferred 
to appear inconsistent, rather than omit the enume- 
VOL. I.- -10 


110 


ON CIVIL LIBERTY 


ration of those important liberties, that of conscience, 
as it is generally called, that of communion, and of 
petitioning; and the reader will remember, moreover, 
that these rights were added as amendments. They 
must then have appeared very important to those 
who made our constitution, both on account of their 
intrinsic importance, and because so often attacked 
by the power-holders. Let the reader also remember 
that, if it be thus important to abridge the power of 
government to interfere with free communion, it is 
at least equally important that no person or number 
of men interfere, in any manner, with this sacred 
right. Oppression does not come from government 
or official bodies alone. The worst oppression is of 
a social character, or by a multitude. 

The English have established the right of com¬ 
munion, as so many other precious rights by com¬ 
mon law, by decisions, by struggles, by revolution. 
All the guarantee they have for the unstinted enjoy¬ 
ment of the right lies in the fact that the whole 
nation says with one accord, as it were: Let them 
try to take it away. 

It is the same with our epistolary communion. 
The right of freely corresponding is unquestionably 
one of the dearest as well as most necessary of 
civilized man; yet, our forefathers were so little 
acquainted with a police government, that no one 
thought of enumerating the sacredness of letters 
along with the freedom of speech and the liberty of 
the press. The liberty of correspondence stands 
between the two: free word, free letter, free print. 
The framers did not think of it, as the first law- 


AXD SELF-GOVEENMENT. 


Ill 


makers of Kome are said to have omitted the punish¬ 
ment of parricide. Yet we, too, say: Let any one 
try to infringe the sacredness of letters. 

In all the late struggles for liberty on the con¬ 
tinent of Europe, the sacredness of letters was in¬ 
sisted upon, not from abstract notions, but for the 
very practical reason that governments had been 
in the habit of disregarding it. Of course, they now 
do so again. The English parliament took umbrage, 
a few years ago, at the liberty a minister had taken 
of ordering the opening of letters of certain political 
exiles residing in England, and although he stated 
that it had been the habit of all administrations to 
order it under certain circumstances, he promised to 
abstain in future. In the United States there is no 
process or means known to us, not even by writ of a 
court, we believe, by which a letter could be extracted 
from the post-office, except by him to whom it is ad¬ 
dressed ; and as to the executive unduly opening let¬ 
ters, it would be cause for instant impeachment. 

Quite recently, in the month of April, 1853, it ap¬ 
peared in the prosecution of several persons of dis¬ 
tinction at Paris, for giving wrong and injurious 
news to foreign papers, that their letters had not 
only been opened at the post-office, but that the 
originals had been kept back, and copies had been 
sent to the recipients, with a postscript, written by 
the government officer, for the purpose of fraudu¬ 
lently explaining the different handwriting. It 
stated that the correspondent had a sore hand. 
When the counsel for the accused said that the 
falsifying officer ought to be on the bench of the ac- 


112 


ON CIVIL LIBERTY 


cnsod, the court justified the prefect of the police, on 
the ground of “ reasons of state.” No commentary 
is necessary on such self-vilification of governments; 
but this may be added, that these outrages were 
committed even without a formal warrant from any 
one, but on the sole command of the police. Are we, 
then, wrong in calling such governments police 
governments? It is not from a desire to stigmatize 
these governments. It is on account of the prevail¬ 
ing principle, and the stigma is a natural consequence 
of this principle.^ 


* In the decision of the appellate court in the same case we find 
this to be the chief argument, that government establishes post- 
offices, and cannot be expected to lend its hand to the promotion of 
mischief, by carrying letters of evil doers. This is totally fallacious. 
Government does not establish post-offices, but society establishes 
them, though it may be through government. 

If it did, it is not a benefit done by a second party, as when A 
makes a present to B, but government is simply and purely an 
agent; and, what is more, the right of establishing post-offices is 
not an inherent attribute of government, such as the administra¬ 
tion of justice or making war. Government merely becomes the 
public carrier, for the sake of general convenience. There are 
many private posts, and governments Avithout government post- 
offices, for instance, the republic of Hamburg. 

The opening of letters without proper warrant is a frightful per¬ 
version of power, and though government should be able to get at 
secret machinations, the secret of letters is a primordial condition. 
Government might, undoubtedly, knoAV many useful things, if the 
sacredness of catholic confession were broken into: but that is con¬ 
sidered a primordial and ante-political condition. So, many codes 
do not force a son to testify against a father, the family aflfection is 
considered a primordial condition. The very state of society, for 
which it is worth living, is invaded, if the correspondence is exposed 
to this sort of government burglary. 

The argument is simply this. IMan is destined to live in society. 



AND SELF-GOVERNMENT. ' 


113 


England, as may be supposed, bas not always 
enjoyed liberty of the press. It is a conquest of 
high civilization.^ It is, however, a remarkable fact, 
that England owed its transitory but most stringent 
law of a censorship to her republican government. 

On Sept. 20, 1647,^ it was decreed by the repub¬ 
lican government in England that no book hence¬ 
forth be printed without previously being read and 
permitted by the public censor, all privileges to the 
contrary notwithstanding. House searches for prohi¬ 
bited books and presses should be made, and the post- 
office would dispatch innocent books only. All places 
where printing-presses may exist should be indicated 
by authority. Printers, publishers and authors were 
obliged to give caution-money for their names. No 
one was permitted to harbor a printer without per¬ 
mission, and no one permitted to sell foreign books 
without permission. Book-itinerants and ballad- 
singers were imprisoned and whipped. We are all 
acquainted with Milton’s beautiful and searching 


united by converse and intercommunion; this is a basis of bu- 
manity. If you open letters you seriously invade this primary con¬ 
dition. Men are individuals, and social, destined for civilization 
and united progress, and the question is not whether they may be* 
dispensed with, but how to govern with them. Governments too fre¬ 
quently act as though the government were the primary condition, 
and the remaining question only was, how much may be spared by 
government, to be left for society or individuals. The opposite is 
the truth. 

2 See Lieber’s Letter to lion. W. C. Preston on International 
Copyright. 

3 The same year, therefore, in which Charles the First was exe¬ 
cuted. 


10-^ 



114 


ON CIVIL LIBERTY 


essay on tlie liberty of the press against this censor¬ 
ship. 

The reader who pays attention to the events of his 
own days, will remember the law against the press, 
issued immediately after the coup d’etat of Louis 
Napoleon, which puts the sale of printing and litho¬ 
graphic presses, copying machines, as well as types, 
under police supervision, and which, in one word, 
intercepts all public communion. 

I suppose it will be hardly necessary to treat, in 
connection with the liberty of communion, of the 
“liberty of silence,” as a French paper headed an 
article, when, soon after the coup d’etat, it was inti¬ 
mated to a Paris paper, by the police, that its total 
silence on political matters would not be looked upon 
by government with favor, should the paper insist on 
continuing it. 

It would be, however, a great mistake to suppose 
that governments alone interfere with correspondence 
and free communion. Governments are bodies of 
men, and all bodies of men act similarly under 
similar circumstances, if the power is allowed them. 
All absolutism is the same. I have ever observed, 
in all countries in which I have lived, that if party 
struggle rises to factious passion, the different parties 
endeavor to get hold of the letters of their adversa¬ 
ries. It is therefore of the last importance, both that 
the secret of letters and the freedom of all commu¬ 
nion be legally protected as much as possible, and 
that every true friend of liberty present the import¬ 
ance of this right in the clearest possible manner to 
lus own mind. 


AND SELF-GOVERNMENT. 


115 


7. The right of locomotion, or of free egress and 
regress, as well as free motion within the country, is 
another important individual right and element of' 
liberty. 

The strength of governments was generally con¬ 
sidered, in the last century, to consist in a large 
population, large amount of money, that is, specie, 
within the country, and a large army founded upon 
both. It was consistent, therefore, that in countries 
in which individual rights went for little, and the 
people were considered the mere substratum upon 
which the state, that is, the government, was 
erected, emigration was considered with a jealous 
eye, or wholly prohibited. Nor can it be denied that 
emigration may present itself in a serious aspect. So 
many people are leaving Ireland, that it is now com¬ 
mon, and not inappropriate, to speak of the Irish 
exodus; and it has been calculated, upon authentic 
data, both in Germany and the United States, that for 
the last few years the German emigrants have carried 
not far from fifteen millions of Prussian dollars annu¬ 
ally into the United States.'* The amount of emi¬ 
grating capital will be much greater, if the German 
emigration should be so much larger than that of pre- 


On the other hand, an immense amount of capital is annually 
returned, from successful emigrants in the United States, to Ireland 
and Germany. Persons who have not paid attention to the subject, 
cannot have any conception how many hard yet gladly earned pounds 
and thalers are sent from our country to aged parents or toiling 
sisters and brothers in Europe. A wide-spread and blessed process 
of affection is thus all the time going on—silent, gladdening, and full 
of beauty, like the secret and beautifying process of spring. 



116 


ON CIVIL LIBERTY 


vious years, as is indicated by many circumstances. 
But freemen believe that governments are for them, 
not tliey for governments, and that it is a precious 
right of every one to seek that spot on earth where 
he can best pursue the ends of life, physical and 
mental, religious, political, and cultural. 

If, under peculiar circumstances, a country should 
find itself forced to prohibit emigration, it would, at 
any rate, so far as this right goes, be an abridgment 
of liberty. We can imagine many cases in which 
emigration should be stopped by changing those cir¬ 
cumstances which cause it, but none in which it ought 
to be simply prohibited. The universal principle of 
adhesiveness, so strong in all spheres of action, 
thought and affection, and which forms one of the 
elementary principles of society and continuity of 
civilization, is sufficiently strong to keep people where 
they are, if they possibly can remain; and if they 
leave an overpeopled country, or one in which they 
cannot find work or a fair living, they become active 
producers, and consequently proportionate consumers 
in the new country, so that the old country will reap 
its proportionate benefit, provided free exchange be 
allowed by the latter. 

The same applies to the capital removed along 
with emigration. It becomes more productive, and 
mankind at large are benefited by it. 

Besides, it is but a part of the general question, 
shall or shall not governments prohibit the efflux of 
money? It was formerly considered one of the high¬ 
est problems of statesmanship, even by rulers so 
wise as Frederic the Second, of Prussia, to prevent 


AND SELF-GOVERNMENT. 


117 


money from flowing out of the country; for wealth 
was believed to consist in money. Experience has 
made us wiser. We know that the freest action in 
this, as in so many other cases, is also the most con¬ 
ducive to general prosperity. It was stated in the 
journals of the day that Miss Jenny Lind remitted 
five hundred thousand dollars from the United States 
to Europe. Suppose this to be true, would they have 
been benefited had she been forced to leave that sum 
in this country? Or would we, upon the whole, 
profit by preventing five million dollars, which, 
according to the statement of our secretary of state, 
are now annually sent by our Irish immigrants to 
Ireland, from leaving our shores ? Unquestionably 
not. But this is not the place for farther pursuing 
a question of political economy. 

The English provided for a free egress and regress 
as early as in Magna Charta.^ As to the freest pos¬ 
sible locomotion within the country, I am aware 
that many persons accustomed to Anglican liberty 
may consider my mentioning it as part of civil liberty 
somewhat over-minute. If they will direct their 
attention to countries in which this liberty is not 
enjoyed in its fullest extent, they will agree that I 
have good reason for enumerating it. Passports are 
odious things to Americans and Englishmen, and 
may^they always be so.® 


5 Hon. Edward Everett’s dispatch to Mr. Crampton, on the Island 
of Cuba, December 1, 1852. 

® The primordial right of locomotion has been discussed by mo 
in Political Ethics, at considerable length. 



118 


ON CIVIL LIBERTY 


C II A P T E K X . 

LIBERTY OF CONSCIENCE. PROPERTY. SUPREMACY OF 
THE LAW. 

8. Liberty of conscience, or, as it ought to be 
called more properly,’ the liberty of worship, is one 
of the primordial rights of man,^ and no system of 
liberty can be considered comprehensive which does 
not include guarantees for the free exercise of this 
right. It belongs to American liberty to separate 
entirely the institution which has for its object the 
support and diffusion of religion from the political 
government. We have seen already what our con¬ 
stitution says on this point. All state constitutions 
have similar provisions. They prohibit government 
from founding or endowing churches, and from de¬ 
manding a religious qualification for any office or the 
exercise of any right. They are not hostile to reli¬ 
gion, for we see that all the state governments direct 

* Conscience lies beyond the reach of government. “Thoughts 
are free,” is an old German saw. The same must be said of feel¬ 
ings aud conscience. That which government, even the most de¬ 
spotic, can alone interfere with, is the profession of religion, worship, 
and church government. 

2 See Primordial Rights in Political Ethics. 



AND SELF-GOVERNMENT. 


119 


or allow the bible to be read in the public schools ; 
but they adhere strictly to these two points: no wor¬ 
ship shall be interfered with, either directly by per¬ 
secution, or indirectly by disqualifying members of 
certain sects, or by favoring one sect above the 
others; and no church shall be declared the church 
of the state, or “ established churchnor shall the 
people be taxed by government to support the clergy' 
of all the churches, as is the case in France. 

In England there is an established church, and 
religious qualifications are required for certain offices 
and places, at least in an indirect way. A member of 
parliament cannot take his seat without taking a cer¬ 
tain oath “ upon the faith of a Christianwhich, of 
course, excludes Jews. There is no doubt, however, 
that this disqualification will soon be removed. 
Whether it will be done or not, we are nevertheless 
authorized to say that liberty of conscience forms 
one of the elements of Anglican liberty. It has 
not yet arrived at full maturity in some portions of 
the Anglican race, but we can easily discern it in the 
whole race, in whose history we find religious tolera¬ 
tion at an earlier date than in that of any other large 
portion of mankind. Venice, and some minor states, 
found the economical and commercial benefit of tole¬ 
ration at an early period, but England was the earliest 
country of any magnitude where toleration, which 
precedes real religious liberty, Avas established. While 
Louis the Fourteenth, of France, called the Great, 
dragonaded the protestants on no other ground than 
that they would not become catholics, a greater king, 
William the Third, declared, in England, that “con- 


120 


ON CIVIL LIBEIITY 


science is God’s province.” The catholics were long 
severely treated in England, bnt it was more on a 
political ground, because the pope supported for a 
long time the opponents to the ruling dynasty, than 
on purely religious grounds. 

There is a new religious zeal manifesting itself in 
all branches of the Christian church. The catholic 
church seems to be animated by a renewed spirit of 
activity, not dissimilar to that which animated it in 
the seventeenth century, by which it regained much 
of the ground lost by the reformation, and which has 
been so well described by Mr. Kanke. The pro- 
testants are not idle; they study, probe, preach, and 
act Avith great zeal. May Providence grant that the 
Anglican tribe, and all the members of the civilized 
race, may more and more distinctly act upon the prin¬ 
ciple of religious liberty, and not swerve from it, even 
under the most galling circumstances. Calamitous 
consequences, of which very feAV may have any con¬ 
ception at this moment, might easily follow. 

As to that unhappy and most remarkable sect 
called the mormons, who have sprung up and consoli¬ 
dated themselves within our country, and who doubt¬ 
less may become troublesome when sufficiently nume¬ 
rous to call on us for admission into the Union, I take 
it that the political trouble they may give cannot arise 
from religious grounds. Whether they have fallen 
back into Buddhism, making their god a perfectible 
being, with parts and local dwelling, cannot become 
a direct political question, however it may indirectly 
affect society in all its parts. The potent questions 
which will offer great difficulty will be, whether a 


AND SELF-GOVERNMENT. 


121 


Mormon state, with its “ theo-dernocratic” govern¬ 
ment, as they term it, can be called a republic, in the 
sense in which our constitution guarantees it to every 
member of the Union. It will then, probably for the 
first time in history, become necessary legally to 
define what a republic is. The other difficulty will 
arise out of the question which every honest man will 
put to himself, can we admit as a state a society of 
men who deny the very first principle, not of our 
common law, not of Christian politics, not of modern 
progress, but of our whole western civilization, as 
contradistinguished to oriental life—of that whole 
civilization in which we have our being, and which 
is the precious joint product of Christianity and an¬ 
tiquity—who deny monogamy. 

No one will now deny that the English parliament 
followed too tardily the advice of those great states¬ 
men who urged it long ago to abolish test oaths, and 
other religious impediments; but to judge impartially, 
we must not forget that the removal of disqualifica¬ 
tions in countries enjoying a high degree of liberty, 
is always more difficult than in despotic countries, 
where all beneath the despot live in one waste 
equality. Liberty implies the enjoyment of important 
rights and high privileges. To share them freely 
with others who until then have not enjoyed them 
appears like losing part of them. It is a universal 
psychologic law. Neither religion, nor color, con¬ 
stitutes half the difference in many Asiatic states, 
which they establish in far freer countries. It must 
likewise be remembered that liberty implies power, 
the authority of acting; consequently, an admission 
VOL. T. -11 


122 


ON CIVIL LIBERTY 


to equality in a free country implies admission to 
'power, and it is this Avhich frequently creates, justly 
or unjustly, the difficulty of perfect religious equality 
in certain states of society. 

The end, however, Avhich is to be reached, and 
towards which all liberty and political civilization 
tends, is perfect liberty of conscience. 

9. One of the staunchest principles of civil liberty 
^ is the firmest possible protection of individual pro- 
/ perty^—acquired or acquiring, produced and accu- 

/ mulated, or producing and accumulating. We in- 
j elude, therefore, unrestrained action in producing 
and exchanging, the prohibition of all unfair mono¬ 
polies, commercial freedom, and the guarantee that 
1 no property shall be taken except in the course of 
• law; and the principle that, in particular, the con- 
\ stant taking away of part of property, called taxa¬ 
tion, shall not take place, except by the direct or 
indirect consent of the owner—the tax-payer—and, 
moreover, that the power of government to take 
part of the property, even with the coils^t of the 
‘payer, be granted for short periods only,'so5that the 
taxes must be renewed, and may be revis^- at brief 

- % 

3 It has been one of the main objects in my Essays bn Labor 
and Property, to show the necessity and justice of individual pro¬ 
perty, and its direct connection with man’s individuality, of which 
it is but the reflex in the material world around him. Man suffers 
in individuality, therefore in liberty, in the degree in which abso- 
' lutism, which is always of a communistic nature, deprives him of 
tlie possession, enjoyment, production, and exchange of individual 
property. The Essays treat of property in a political, psychologic 
and economical point of view. 




AND SELF-GOVERNMENT. 


123 


intervals. The true protection of individual pro^ 
perty demands likewise the exclusion of confiscation.' 
For, although confiscation as a punishment is to be 
rejected, on account of the undefined character of 
the punishment, depending not upon itself but upon 
the fact whether the punished person has any pro¬ 
perty, and how much, it is likewise inadmissible on 
the ground that individual property implies indivi¬ 
dual transmission,"* which confiscation totally de¬ 
stroys. It would perhaps not be wholly unjust to 
deprive an individual of his property as a punish¬ 
ment for certain crimes, if we were to allow it to 
pass to his heirs. We do it in fact when we im¬ 
prison a man for life, and submit him to the regular 
prison discipline, disallowing him any benefit of the 
property he may possess; but it is unjust to deprive 
his children or other heirs of the individual pro¬ 
perty, not to speak of the appetizing effect which 
confiscation of property has often produced upon 
governments. 

The English attainder and corruption of blood, so 
far as it affects property, is hostile to this great 
principle of the utmost protection of individual 
property, and has come down to the present times 
from a period of semi-communism, when the king 
was considered the primary owner of all land. Cor¬ 
ruption of blood is distinctly abolished by our con¬ 
stitution. 

Individual property is coexistent with govern- 


'* The subject of individual inheritance has also been treated at 
length in the Essays mentioned in the preceding note. 



124 


ON CIVIL LIBERTY 


ment. Indeed, if by government be understood not 
only the existence of any authority, but rather the 
more regular and clearly established governments of 
states, property exists long before government, and 
is not its creature; as values exist long before money, 
and money long before government coin. We find, 
therefore, that the rightful and peaceful enjoyment 
of individual property is not mentioned as a par¬ 
ticular item of civil liberty, as little as the institution 
of the family, except when communistic® ideas have 
endangered it,® or, in particular cases, when private 


^ I shall not have room to give a whole chapter to the subject of 
communism, or, rather, a single chapter would be wholly insuffi¬ 
cient on this interesting subject. I shall mention, therefore, this 
only, that I use in these pages the word communism in its common 
adaptation, meaning a state of society in which individual property 
is abolished, or in which it is the futile endeavor of the lawgiver to 
abolish it, such as hundreds of attempts in ancient times, in the 
middle ages, and in modern epochs, in Asia and in Europe have 
been made, among the Spartans, the anabaptists, and French com¬ 
munists. I do not take here the term communism in that philoso¬ 
phical sense, according to which every state, indeed every society^ 
whatever, necessarily consists of the two elements, of individualism^ 
and socialism. The grave error of the socialist is that he extends 
the principle of socialism, correct in itself, to the sphere where 
individualism or separatism, equally correct, ought to determine 
our actions. The socialist is as mistaken an enthusiast as the indi¬ 
vidualist would be, who, forgetting the element of socialism, should 
carry his principle to the extreme of sejunctive egotism, and insist 
upon a dissolution of government and a disavowal of the sovereignty 
of society in political matters. It is instructive to observe how 
also in this case the extremes meet; for works have been actually 
published by socialists which wind up with an entire denial of 
government, and an avowal of “individual sovcreignt 3 \” 

6 Sec the Constitution of the French Republic of 1848, in the 
appendix.* It contains a paragraph acknowledging private pro- 



AND SELF-GOVERNMENT. 


125 


property must be given up for the public benefit, and 
laws or constitutions settle that it shall not be done 
except for equivalents given by the public through 
government.^ 

Our constitution goes farther. It distinctly enacts 
that “ no state shall pass any law impairing the ob¬ 
ligation of contracts,” which includes contracts with 
governments, and not only common contracts, but 
rights conferred for equivalents.® 

The right of self-taxation has been mentioned as 
a guarantee of private property, for, no matter what 
form taxation may assume, it must always consist in 
the appropriation of private property for public 
ends. Taxation has, however, another, purely poli¬ 
tical and highly important meaning, and we shall 

perty, the family, &c. It was right to insert it, under the cir¬ 
cumstances. If the Spartans had ever reformed their government 
and passed from their socialism to individualism, they would have 
been justified in proclaiming the sanctity of the family and the ac¬ 
knowledgment of private cookery, however ludicrous this might 
be under other circumstances. 

Points belonging to this subject and its primordial character 
were pronoiinced with clearness in the late pleadings in the French 
courts, when it was endeavored to show, unfortunately in vain, 
that Louis Napoleon had no right, even as a dictator, to confiscate 
the private property of the Orleans family, and that the courts 
were competent to restore it to the lawful owners. 

8 See judge Story, in his Commentaries on the Constitution of 
the United States, and his Opinion, as well as chief-justice Mar¬ 
shall’s in the celebrated Dartmouth College case, 4 Wheaton R. 518, 
and also Mr. Webster’s W^orks for his argument in that case. 

The English go much farther than oui*selves, not indeed in prin¬ 
ciple, but because they consider many rights, places and privi¬ 
leges as vested property which we by no means consider as such. 

11 -^- 




126 


ON CIVIL LIBERTY 


consider it under this aspect in another part of this 
work. 

Every single subject here mentioned, monopolies,® 
freedom of trading, freedom of home production, 
freedom of exchange, possession of property, taxa¬ 
tion and confiscation—each one has a long his¬ 
tory, full of struggle against error and government 
interference, running through many centuries and 
even a thousand years. On each a separate and in¬ 
structive history might be written. Each shows 
the continued course of gradually, though very 
slowly, expanding freedom. Nor has this history of 
development reached its close, although it has at¬ 
tained to that period in which we acknowledge the 
highest protection of individual property as an ele¬ 
ment of our freedom. 

That the so-called repudiation—it is always unfor¬ 
tunate and suspicious when offences that have long 
received their proper name, are stamped with a 
new and apparently innocent one; still worse it is 
when the error is elevated into a commendable act; 
and Bacon is right when he says Pessima enim res 
est errorum apotheosis—that repudiation is a vio- 
' lation of the sacred principle we treat of, no one now 
will have the hardihood to deny. Still, it is true 
that abroad it is almost universally treated errone¬ 
ously, as well in regard to its causes as to its extent, 
the inferences drawn from it regarding republican 

® An act of Parliament, under James the First (21 James I. i. 3) 
prohibited all monopolies granted by the crown, after the courts 
had repeatedly, even under Elizabeth, declared certain monopolies 
null and void. 



.VXD SELF-GOVERNMENT. 


127 


government, and the supposed novelty of the case. 
We could give a long list of monarchical repudiation. 
But we do not claim this as an excuse. It was a 
serious wrong, yet we totally deny the correctness of 
the assumed facts and inferences drawn from them 
by sir A. Alison.’® 

*0 Paragraph 59, chap. i. vol. i. of History of Europe from the 
Fall of Napoleon to the Accession of Louis Philippe. Possibly an 
opportunity may offer itself some day to treat of this melancholy 
subject at length and in all its details. 

I cannot forbear however to copy a passage of sir A. Alison, viz., 
“The principal states of the Union have, by common consent, re¬ 
pudiated their state debts as soon as the storms of adversity blew; 
and they have in some instances resumed the payment of their 
interest only when the sale of lands they had wrested from the 
Indians afforded them the means of doing so, without recurring to 
the dreaded horrors of direct taxation”—and to add that there is not 
one fact in this whole passage. The principal states did not repu¬ 
diate; the repudiation was not by common consent; no land has 
been wrested from the Indians and sold for the benefit of the states, 
and direct taxation exists in most states; perhaps in all the states 
to some extent. Many of those readers who have been my pupils 
will remember that for a number of years I was in the habit of 
delivering a course of lectures on repudiation, in which, I trust, I 
showed no disposition to mince matters; but to repudiate the re¬ 
presentative principle as sir Archibald does when treating of repu¬ 
diation ; and to present the latter as a natural consequence of repub¬ 
licism, transcends the bounds of reason. What element in the En- 
gli.sh polity, we would ask, is it that makes English credit so firm ? Is 
it the monarchical ? This cannot well be, for many monarchs have 
more than loosely dealt with credit, public funds and even private 
property. I believe, on the contrary, that the credit of England 
mainly rests on her representative, her republican principle. I do 
not mean to say that people lend their money, just because she has 
a parliament. What I mean is that the reliance of the world on 
the good faith of England in money matters, has been built up by 
her parliamentary government and would not liave been built up 
without it. 



128 


ON CIVIL LIBERTY 


10. There can be no individual liberty where 
every citizen is not subject to the law, and where he 
is subject to aught else than the law—that is public 
opinion organically passed over into public will.’^ 
This we call the supremacy of the law.'^ All sub¬ 
jective arbitrariness is contrary to freedom. The 
law of a freeman is a general rule of action, having 
grown out of the custom of the people, or having 
been laid down by the authority empowered by the 
people to do so. A law must be a rule which does 
not violate a superior law or civil principle, it must 
be made before the case to which it is applied has 
occurred (without which it cannot be mens sine 
affectu, as the ancients called the law), and it must 
be truly as well as plainly published. 


" We shall presently say more on the all-important word Law ; 
but for an extensive discussion of the subject I must refer the 
reader to the Political Ethics. 

It will hardl}^ be necessary to state that the term supremacy 
of the law, has a meaning only when by law we understand general 
and pre-existing rules of action expressing public will. Whether 
the name of law be given to personal decrees and arbitrary deci¬ 
sions, is not of the smallest importance. Napoleon, at St. Helena, 
expressed his surprise at having been called a despot. “ I,” said 
he, “ who have always acted by law!” This forcibly reminds us of 
a prominent French paper, the Univers, which lately stated that it 
was decidedly in favor of representative government, and that it 
was only necessary to know what is understood by representative 
government. Q'lie Univers—so said the paper itself—understands 
by this term a legislative corps, which represents the government. 
I have known, in an official capacity, a patient in a hospital for the 
insane, who always maintained that the ditference between him and 
me was solely in the name. “Suppose,” he used to say, “we 
patients vote that we are sane and the out-door party is crazy?” 
“ Don’t you see?” he would add with a knowing look. 



AND SELF-GOVERNMENT. 


129 


Tlie citizen, therefore, ought not to be subject to 
ex post facto laws,’^ to a “government by commis¬ 
sions,” nor to extraordinary courts^'* of justice, to a 
dispensing power in the executive (so much insisted 
on by the Stuarts, and, indeed, by all rulers who 
claim to rule by a higher law than the law of the 
land), or to mere “ proclamations ” of the crown or 
executive, nor to the dictation of mobs, nor any 
people who claim to be the people; indeed, to no 
dictates of the people except in its political, that 
is, in its organized and organic capacity. 

All the modern constitutions intended to transplant 
Anglican liberty, declare that the citizen shall be 
subject to his “ natural courts ” only. The charter 
of Louis the Eighteenth prohibited cours pr^vo- 
lates.^^ It had become very necessary to point out 
in the charter that every one should be judged by 
his “ natural court,” because the extraordinary courts 
had been a great grievance in former times, and 
because Napoleon had introduced le jugement ad- 
ministratif, although lettres de cachet remained abo¬ 
lished. An administrative or executive judgment 
simply meant imprisonment or other punishments, 
although the courts had absolved the prisoner, or 
without the action of any court. It is nothing less 
than plain police government. 

The American Declaration of Independence has a 


‘3 Our constitution prohibits them. 

Ry extra courts of justice are meant, in this connection, courts 
of an extraordinary composition, not those that are appointed to sit 
at an unusual time. 

,See the French charter in the appendix. 



130 


ON CIVIL LIBERTY 


passage referring to the subject of “ natural courts.” 
It enumerates as one of the grounds of justification 
for separating from England, that the government 
has “ transported us beyond the seas to be tried for 
pretended offences.” 

All continental governments which were bent on 
defeating the action of the new constitutions, even 
while they existed, resorted to declaring large cities 
and entire districts in “ a state of siege,” thus sub¬ 
jecting them to martial law. All absolute govern¬ 
ments, whether monarchical or democratic, have ever 
found the regular course of justice inconvenient, and 
made war upon the organic action of the law, which 
proves its necessity as a guarantee of liberty. 

It is obvious that, whatever mse provisions a 
constitution may contain, nothing is gained if the 
power of declaring martial law be left in the hands 
of the executive; for declaring martial law, or pro- 
' claiming a place or district in a state of siege, simply 
. means the suspension of the due course of law, of 
the right of habeas corpus, of the common law, and 
of the action of courts. The military commander 
places the prisoners whom he chooses to withdraw 
from the courts before courts-martial. There were a 
number of French departments in “ a state of siege” 
before the coup-d’dtat. After it, all France may be 
said to have been so. 

In England, when there is a rebellion or wide¬ 
spread disorder, threatening life and property, a regu¬ 
lar act of parliament is passed, suspending the habeas 
corpus. The act states the necessity or reasons, and 


AND SELF-GOVERNMENT. 


181 


the time of its duration. This last point is of great 
importance.*® 

AVe have seen already under what circumstances 
our constitution permits the suspension of the habeas 
corpuSj^^d that this caniBGS^be done by the president 
alone, btrt by congress only, need hardly be mentioned. 

It has been necessary to mention here the supre¬ 
macy of the law as a peculiar guarantee of personal 
liberty. We shall return to the subject, and consider 
it in its wider relations. 

11. The preceding guarantee of the supremacy of 
the law leads to a principle, which, so far as I know, 
it has never been attempted to transplant from the 
soil inhabited by Anglican people, and which never¬ 
theless has been in our system of liberty the natural 
production of a thorough government of law, as con¬ 
tradistinguished to a government of functionaries. It 
is so natural to the Anglican tribe that few think of 
it as essentially important to civil liberty, and it is of 
such vital importance that none who have studied the 
acts of government elsewhere can help recognizing 
it as an indispensable element of civil liberty. 

It is simply this, that, on the one hand, every offi¬ 
cer, however high or low, remains personally answer- 
able to the affected person for the legality of the act 
he executes, no matter whether his lawful superior 
has ordered it or not, and, even, whether the executive 
officer had it in his power to judge of the legality of 

*6 The act by which martial law was declared in Ireland, during 
the rebellion in 1798, can be seen in Tytler’s Essay on Military 
Law, appendix. No. 6. I copy this reference from an article. Mar¬ 
tial Law, in Political Dictionary, London, 1846. 



182 


ON CIVIL LIBERTY 


the act he is ordered to do or not; and that, on the 
other hand, every individual is authorized to resist 
an unlawful act, whether executed by an otherwise 
lawfully appointed officer or not. The resistance is 
. made at the resister’s peril. In all other countries, 
obedience to the officer is demanded in all cases, and 
redress can only take place after previous obedience.^^ 
Occasionally, this principle acts harshly upon the 
officer; but we prefer this inconvenience to the inroad 
which its abandonment would make in the govern¬ 
ment of law. W e will not submit to individual men, 
but only to men who are, and when they are, the 
organs of the law.*^ A coup-d’^tat, such as we have 
lately seen in France, would not be feasible in a 
nation accustomed to this principle. All the answer 
which the police officers gave to men like general 
Cavaignac, who asked them whether they were aware 
that they committed a high crime in arresting a repre¬ 
sentative of the people, was, that they had orders 
from their superior, and had nothing to do with the 
question of legality. 

Take as an instance of the opposite to the French 
principle of that huge institution called gensd’armerie, 
the following simple case; 

A sheriff, provided with the proper warrant, has 
the right, after request and denial, to open the house- 
door, forcibly to open it, if a third party has taken 
refuge in it, or sent his goods there. “Every man’s 

Extreme cases, as a matter of course, would be allowed to form 
exceptions. 

I must again refer to the Political Ethics, chapter on Obedience 
to the Law. 



AND SELF-GOVEKNMENT. 


183 


house is his castle,” will not protect any one but the 
bona fide dweller in it. Nevertheless, the sherifi’, 
provided with his legal warrant, does it at his own 
peril; for, if he break open the house, however well 
his suspicion may be grounded, and neither the party 
nor the goods sought for be there, the sheriff is a 
trespasser, and as such answerable to the inhabitant 
of the house before the courts of the land. This may 
be inconvenient in single cases. It may be that the 
maxim which has been quoted has “ been carried as 
far as the true principles of political practice will war¬ 
rant—perhaps beyond what in the scale of sound 
reason and good policy they will warrant.”*® I doubt 
it, whatever the inconvenience in single cases may 
be. All law is inconvenient in some cases; but even 
if this opinion were founded, how august, on the 
other hand, appears the law—I do not mean a 
single statute, but the whole self-evolving system of 
a common law of the land—that errs on the side of 
individual liberty against the public power and the 
united weight of government I 

The reader has seen from the passage on warrants, 
which I gave in a preceding part of this work, how 
far this principle is carried in the case of resisting 
an officer, even to the killing him, if his warrant be 
not wholly correct. Another proof of the uniform 
acknowledgment of this principle and essential 
pillar of civil liberty, is this, that when a British 
minister obtains an act of indemnity, which is an act 

Sir M. Foster, Discourse of Homicide, p. 319. I quote from 
Broom’s Legal Maxims. 

VOL. I.— 12 



184 


ON CIVIL LIBEKTY 


of impunity for certain illegal acts, wliicli, neverthe¬ 
less, necessity demanded, the act of indemnity is 
never for him alone, but it expresses that the act 
shall also cover what the inferior officers have done 
by the direction of the minister in the premises.^®' 

In 'conclusion, I would remark that it is wholly 
indifferent who gives the order. If it be illegal, the 
person who executes it remains responsible for the 
act, although the president or the king should have 
ordered it, or the offending person should be a 
soldier obeying his commander. It is a stern law, 
but it is a sacred principle, and it has worked well. 


20 For instance, in the scarcity of grain in the year 1766, Chatham 
prohibited exportation of grain. When parliament met, he read a 
passage from Locke to show that what he had done was not legal 
yet right. Indemnity was passed for him and those who had acted 
under him. In 1818, ministers asked and obtained indemnity for ' 
the suspension of habeas corpus, for themselves and magistrates 
under them. Many other instances might be given. See Lieber’s 
Legal and Political Hermeneutics, note to page 79, Acts of indem¬ 
nity cannot be passed with us, because we have a constitution of 
which the legislature itself is but the creature, and we cannot pass 
ex post facto laws. All that remains for us to do in cases of absolute 
necessity or transcendent 'Utility is to pass over the occurrence in 
silence ; or congress may show its concurrence by aiding in the act. 
This was the case when Mr, Jefferson purchased the moutli of the 
IMississippi, i, c, the territory of Louisiana, 



AND SELF-GOVEKNMENT. 


185 


CHAPTEE XI. 

QUARTERING SOLDIERS. THE ARMY. 

12. Governments, if not very closely hedged in, 
have it in their power to worry citizens into sub¬ 
mission by many indirect methods. One of these, 
frequently resorted to since the introduction of stand¬ 
ing armies, is that soldiers are billeted with the dis¬ 
affected citizens. An insolent soldiery, supported by 
the executive, find a thousand ways of annoying, in¬ 
sulting, and ruining the family with whom they are 
quartered. It has been deemed necessary, therefore, 
specially to prohibit the quartering of soldiers with 
citizens, as an important guarantee of civil liberty. 
The English bill of rights, “ declaring the rights and 
liberties of the subject,” of 1688, enumerates in the 
preamble, as one of the proofs that James the Second 
“ did endeavor to subvert and extirpate” . . . “ the 
laws and liberties of this kingdom,” his “ raising and 
keeping a standing army within the kingdom in 
time of peace, without consent of parliament, and 
quartering soldiers contrary to law.” It is, in Eng¬ 
land, therefore, a high offence to quarter soldiers 
without consent of parliament; and the constitution 
of the United States ordains that “ no soldier shall 


186 


ON CIVIL LIBERTY 


in time of -peace be quartered in any bouse without 
the consent of the owner, nor in time of war, but in 
' a manner to be prescribed by law.” The framers of 
the constitution, it will be observed, were very exact 
in drawing up this paragraph. 

Persons not versed in the history of civil liberty 
and of progressive absolutism, might be surprised at 
this singling out of quartering soldiers in documents 
of such elevated character and condensed national 
demands as the Bill of Eights and the American 
constitution are; but the “dragonades” of Louis the 
Fourteenth, in France, of James the Second, in Scot¬ 
land, and those of more recent and present date, fur¬ 
nish sufficient justification for this specific guarantee. 

13. The preceding safeguard, although justly 
pointed out separately, is still only part of the gene- 
, ral one that the forces must be strictly submitted to 
the law. The navy cannot be, in its nature, so 
formidable an instrument in the hands of the exe¬ 
cutive as the army. It cannot be brought to bear 
upon the people; it is not centralized in its cha¬ 
racter, and it cannot surround the ruler. There are 
many other reasons why the navy, the floating bul¬ 
warks of a nation, has an inherent affinity with the 
popular element, and why free nations only can have 
efficient navies or merchant fleets, as a distinguished 
statesman of the United States* has observed. 

It is far different with the land forces. Ever since 
standing armies have been established, it has been 
necessary, in various ways, to prevent the army from 


* Mr. Poinsett. 



AND SELF-GOVERNMENT. 


137 


becoming independent upon the legislature. There 
is no liberty, for one who is bred in the Anglican 
school, where there is not a perfect submission of the 
army to the legislature of the people. We hold it to 
be necessary, therefore, to make but brief appropria- ^ 
tions for the army. The king of England cannot raise 
an army, or any part of it, without act of parliament;^ 
the army-estimates are passed for one year only, so 
that, were parliament to refuse appropriations, after 
a twelvemonth the army would be dissolved. The 
mutiny-bill, by which power is given to the king to 
hold courts-martial for certain offences in the army, 
is likewise passed for a year only; so that, without 
repassing it, the crown would have no power even to 
keep up military discipline. 

The constitution of the United States makes the 
president, indeed, commander-in-chief, but he cannot 
enlist a man, or pay a dollar for his support, without 
the previous appropriation by congress, to which the 
constitution gives “power to make rules for the 
government and regulation of the land and naval 
forces,” and to which it denies the authority of making 
any appropriation for the support of the national 
forces for a longer term than two years. 

The importance of this dependence of the army 


2 The guards of Charles the Second were declared anti-constitu¬ 
tional, and the army of James the Second was one of the evidences 
by which he was presumed to have abdicated; that is, in other 
words, one of his breaches of the fundamental law of the land. A 
new sanction was given to this principle in the sixth article of the 
Bill of Rights, which runs thus: A standing army, without the 
consent of parliament, is against law. 

12* 



138 


ON CIVIL LIBEHTY 


■Qpon the civil power has been felt by all parties. 
While the people are bent on submitting the army 
to the legislature, the governments, which in the late 
struggles were anxious to grant as little liberty as 
possible, always endeavored to exclude the army 
from the obligation of taking the constitutional oath. 
Constitutional oaths, like other political oaths, are 
indeed no firm guarantee in times of civil disturb¬ 
ances ; but where circumstances are such that people 
must start in the career of freedom with an enacted 
constitution, it is natural and necessary that the army 
should take the oath of fidelity to the fundamental 
law, like any other persons employed in public ser¬ 
vice, especially where the oath of allegiance to the 
monarch continues. The oath, when taken, we have 
already admitted, does not furnish any great security; 
but in this, as in so many other cases, the negative 
assumes a very great and distinct importance, 
although the positive may be destitute of any direct 
weight. The refusal of this oath shows distinctly 
that the executive does not intend frankly to enter 
on the path of civil freedom. This was the case in 
Prussia, when, lately, there seemed to be some hope 
of seeing constitutional liberty commenced in that 
country. 

The Declaration of Independence saj^s: “ lie has 
kept among us in times of peace standing armies 
Avithout the consent of our legislatures.” It is enu¬ 
merated as a radical grievance, plain and palpable 
to every Anglican mind. Immediately after, the 
declaration significantly adds: “He has affected to 
render the military independent of, and superior to. 


AND SELF-GOVEENMENT. 


189 


the civil power” This “affected” is striking. The 
attempt of doing it, though the term affected indi¬ 
cates the want of success, is counted as a grievance 
sufficient to warrant among others an extinction of 
allegiance. Of the twenty-seven grievances enume¬ 
rated in the declaration as justification for a revolu¬ 
tion, three relate to the army. 

Dr. Samuel Johnson, not biased, as the reader 
well knows, in favor of popular liberties, never¬ 
theless showed that he was bred in England, when 
he speaks of “the greatest of political evils—the 
necessity of ruling by immediate force.”^ There is, 
however, a greater evil still—the ruling by imme¬ 
diate force when it is not necessary or against the 
people. 

Standing armies are not only dangerous to civil 
liberty because directly depending upon the exe¬ 
cutive. They have the additional evil effect that 
they infuse into the whole nation—especially when 
they are national armies, so that the old soldiers 
return continually to the people—a spirit directly 
opposite to that which ought to be the general spirit* 
of a free people devoted to self-government. A na¬ 
tion of freemen stands in need of a pervading spirit 
of obedience to the laws; an army teaches and must 
teach a spirit of prompt obedience to orders. Habits 
of disobedience and of contempt for the citizen are 
produced, and a view of government is induced 
which is contrary to libert}^, self-reliance, self-govern¬ 
ment. Command ought to rule in an army; self- 


3 Considerations on the Corn Laws, by Dr. Samuel Johnson. 



140 


ON CIVIL LIBERTY 


development of law and self-sustaining order ought 
to pervade a free people. A German king, in one 
of his throne speeches, when a liberal spirit had 
already shown itself in that country, said: “ The will 
of one must ultimately rule in the government, even 
as it is in the camp.” This shows exactly Avhat we 
mean. The entire state, with its jural and civic 
character, is compared to a camp. 

The officers of a large army are in the habit of 
contemptuously speaking of the “ babbling lawyers.” 
Les Idgistes have always been spoken of by the 
French officers in the same tone as “ those lawyers” 
were talked of by Strafford and Laud. Where the 
people worship the army an opinion is engendered 
as if really courage in battle were the highest 
phase of humanity; and the army, in turn, more 
than aught else, leads to the worship of one man— 
so detrimental to liberty. All debate is in common 
times odious to the soldiers. They habitually ridi¬ 
cule parliamentary debates of long duration. Act, 
act, is their cry, which in that case means: Com¬ 
mand and obey are the two poles round which 
public life ought to turn. A man who has been a 
soldier himself, and has seen the inspiring and rally¬ 
ing effect which a distinctive uniform may have in 
battle—the desire not to disgrace the coat, is not 
likely to fall in with the sweeping denunciations of 
the uniform, now frequently uttered by the “ peace- 
men ;” but it is true that the uniform, if constantly 
worn, and if the army is large, as on the continent of 
Europe, greatly aids in separating the army from 
tlie people and in increasing that alienating esprit 


AND SELF-GOVERNMENT. 


141 


de corps which, ought not to exist where the people 
value their liberty. 

Standing armies, therefore, wherever necessary— 
and they are necessary at present, as well as far pre¬ 
ferable to the medieval militia—ought to be as small 
as possible, and completely dependent on the legis¬ 
lature for their existence. Such standing armies as 
we see in the different countries of the European 
continent are wholly incompatible with civil liberty, 
by their spirit, number and cost. 

A perfect dependence of the forces, however, not 
only requires short appropriations, and limited 
authority of the executive over them. It is farther 
necessary—because they are under strict discipline, 
and therefore under a strong influence of the 
executive — that these forces, and especially the 
army, be not allowed to become deliberative bodies, 
and that they be not allowed to vote as military “ 
bodies. Wherever these guarantees have been dis¬ 
regarded, liberty has fallen. These are rules of 
importance at all times, but especially in countries 
where unfortunately very large standing armies 
exist. In France, the army consists of half a million, 
yet universal suffrage gave it the right to vote, and 
the army as well as the navy did vote to justify the 
second of December, as well as to make Louis N. 
Bonaparte emperor. This may be in harmony 
with French “equality;” it may be democratic, if 
this term.be taken in the sense in which it is wholly 
unconnected with liberty; all that we—people with 
whom liberty is more than a theory, or something 
aesthetically longed for, and who learn liberty as the 


142 


ON CIVIL LIBERTY 


artisan learns liis craft, by handling it—all that we 
know is, that it is not liberty; that it is directly 
destructive of it. 

It was formerly the belief that standing armies 
were incompatible with liberty, and a very small one 
was granted to the king of England with much re¬ 
luctance ; and in France we have a gigantic standing 
army, itself incompatible with liberty, for whom in 
addition the right of voting is claimed. 

The Bill of Eights, and our own Declaration of 
Independence, show how large a place the army 
occupied in the minds of the patriotic citizens and 
statesmen who drew up those historic documents, 
the reasons they had to mention it repeatedly, and 
of erecting fences against it. 

Military bodies ought not to be allowed even the 
right of petitioning, as bodies. History fully proves 
the danger, that must be guarded against."* English 

I do not consider myself authorized to say that the Anglicans 
consider it an elementary guarantee of liberty not to be subjected 
to the obligation of serving in the standing army, but certain it is 
that as matters now stand, and as our feelings now are, we should 
not consider it compatible with individual liberty; indeed, it would 
be considered as intolerable oppression, if we were forced to spend 
part of our lives in the standing army. It would not be tolerated. 
The feeling would be as strong as against the Frencli system of con¬ 
scription, which drafts by lot a certain mimber of young men for 
the army, and permits those who have been drafted to furnish 
substitutes; ,as against the Prussian system, which obliges every one 
from the highest to the lowest, to serve a certain time in the stand¬ 
ing army, with the exception only of a few “mediatized princes.” 
The Anglicans, therefore, may be said to be unequivocally in favor 
of enl^ted standing armies, where standing armies are necessary. 




AND SELF-GOVERNMENT. 


143 


history, as well as that of other nations, furnishes us 
with instructive instances. 

14. Akin to the last-mentioned guarantee, is that 
which secures to every citizen the right of possessing 
and bearing arms. Our constitution says: “The 
right of the people to keep and bear arms shall not 
be infringed uponand the Bill of Eights secured 
this right to every protestant. It extends now to 
every English subject. 

Wherever attempts at establishing liberty have 
been made in recent times, on the continent of 
Europe, a general military organization of the 
people, or “national guards,” has been deemed 
necessary, but we cannot point them out as charac¬ 
teristics of Anglican liberty. 


144 


ON CIVIL LIBERTY 


CIIAPTEK XII. 

PETITION. ASSOCIATION. 

15. We pass over to the great right of petitioning, 
so jealously suppressed wherever absolute power 
rules or desires to establish itself, so distinctly con¬ 
tended for by the English in their revolution, and so 
positively acknowledged by our constitution. 

An American statesman of great mark has spoken 
lightly of the right of petition in a country in which 
the citizens are so fully represented as with us but 
this is an error. It is a right which can be abused, 
like any other right, and which in the United 
States is so far abused as to deprive the petition 
'of weight and importance. It is nevertheless a 
sacred right, which in difScult times shows itself 
in its full magnitude, frequently serves as a safety- 
valve, if judiciously treated by the recipients,* * 


1 It was stated that the right of petition was of essential value 
only in a monarchy, against the encroachments of the crown. But 
this whole view was unquestionably a confined one, and caused by 
irritation against a peculiar class of persevering petitioners. 

2 There is no more striking instance on record, so far as our 
knowledge goes, than the formidable petition of the chartists in 

*1848, and the calm and respect with which this threatening docu- 



AND SELF-GOVEENMENT. 


145 


and may give to the representatives or other bodies 
the most valuable information. It may right many 
a wrong, and the privation of it would at once be 
felt by every freeman as a degradation. The right 
of petitioning is indeed a necessary consequence of 
the right of free speech and deliberation, a simple, 
primitive and natural right. As a privilege it is not 
even denied the creature in addressing the deity. 
It is so natural a right, in all spheres where there 
are superiors and inferiors, that its special acknow¬ 
ledgment in charters or by laws, would be surprising, 
had not ample experience shown the necessity of 
expressing it. 

16. Closely connected with the right just men¬ 
tioned is the right of citizens peaceably to meet and 
to take public matters into consideration, and 

17. To organize themselves into associations, 
whether for political, religious, social, scientific, in¬ 
dustrial, commercial or cultural purposes. That 
this right can become dangerous, and that laws are 
frequently necessary to protect society against abuse, * 
every one knows perfectly well who has the least 
knowledge of the French clubs in the first revolu¬ 
tion. But it is with rights, in our political relations, 
as with the principles of our physical and mental 
organization—the more elementary and indispensable 
they are, the more dangerous they become, if not 
guided by reason. Attempts to suppress their action 

ment was received by the commons, after a speech full of dignity 
and manly acknowledgment of the people by lord Morpeth, now 
earl of Carlisle. 

VOL. I. —18 



146 


ON CIVIL LIBEETY 


lead to mischief and misery. What has been more 
abused than private and traditional judgment in all 
the spheres of thought and taste ? Yet both are ne¬ 
cessary. What principle of our nature has led and 
is daily leading to more vice and crime than that on 
which the propagation of our species and the forma¬ 
tion of the family depend,^ or that which indicates 
by thirst the necessity of refreshing the exhausted 
body ? Shall the free sale of cutlery be interfered 
with, because murders are committed with knives 
and hatchets ? 

The associative principle is an element of progress, 
protection, and efficient activity. The freer a nation, 
the more developed we find it in larger or smaller 
spheres; and the more despotic a government is, the 
more actively it suppresses all associations. The 
Eoman emperors did not even suffer the associations 
of handicrafts. In modern times no instances of the 
power which associations may wield, and of the full 
extent which a free country may safely allow to their 
operations, seem to be more striking than those of the 
Anti-Corn-law League in England, which, by gigantic 
exertions, ultimately carried free trade in corn against 
the strongest and most privileged body of landowners 
that has probably ever existed, either in modern or 
ancient times and, in our own country, the Colo- 


3 The so-called Shakers endeaTor to extirpate this principle, and 
furnish us with an illustration. 

^ A careful study of the whole history of this remarkable associa¬ 
tion, which in no state of the European continent would have been 
allowed to rise and expand, is recommended to every student of 
civil liberty. It is instructive as an instance of perseverance; of an 



AND SELF-GOYEKNMENT. 


147 


nization Society, a private society, planting a new 
state wliich. will be of the vastest influence in tbe 
spreading cause of civilization—a society wbicb, ac¬ 
cording to tbe Liberian declaration of independence, 
“ bas nobly and in perfect faitb redeemed its pledges.” 
In every country, except in tbe United States and in 
England, tbe cry would bave been, Imperium in im- 
perio, and both would bave been speedily put 
down. 

We may also mention our extensive cburcbes, or 
tbe Law Eeform Association in England. There is 
nothing that more forcibly strikes a person arriving 
for tbe first time from tbe European continent, either 
in tbe United States or in England, than tbe thou¬ 
sandfold evidences of an all-pervading associative 
spirit in all moral and practical spheres, from tbe* 
almost universal commercial copartnerships and as¬ 
sociations, tbe “exchanges” of artisans, and banks, 
to those unofficial yet national associations which 
rise to real grandeur. Strike out from England 
or America this feature and principle, and they 
are no longer tbe same self-relying, energetic, in¬ 
domitably active people. The spirit of self-govern¬ 
ment would be gone. In France, an opposite spirit 
prevails. Not only does tbe government believe 
that it must control everything, but tbe people tbem- 


activity the most multifarious, and organization the most extensive ; 
of combined talent and shrewd adaptation of the means to the end; 
and, which is always of equal importance, of a proper conception 
of the end according to the means at our disposal, without which it 
is impossible to do that which Cicero so highly praised in Brutus, 
when he said : Quid vult valde vult. 



148 


ON CIVIL LIBERTY 


selves seem hardly ever to believe in success until 
the government lias made tlie undertaking its own/ 

5 I cannot forbear mentioning here one of those occurrences, 
which, although apparently trivial, nevertheless show the constant 
action of a great principle, as the leaf of a tree reveals the opera¬ 
tion of the vastest elements in nature to the philosopher. At a 
late meeting of the royal academy at London, at which the minis¬ 
ters were present, the premier, lord Aberdeen, said that “as a 
fact full of hope he remarked that for several years the public, in 
the appreciation of art, had outstripped the government and the 
parliament itself.” 

The chief executive ofl5cer considers it a fact full of hope that 
the people have outstripped, in interest and action, the government 
and parliament. How different would a similar case have presented 
itself in any of the continental countries ! 



AND SELF-GOVERNMENT. 


149 


CHAPTEE XITI. 

PUBLICITY. 

18. We now approacli those guarantees of liberty 
which relate more especially to the government of a 
free country, and the character of its polity. The 
first of all we have to mention under this head is pub¬ 
licity of public business. This implies the publicity 
of legislatures and judicial courts, as well as of all 
minor transactions that can in their nature be trans¬ 
acted publicly, and also the publication of all 
important documents and reports, treaties, and 
whatever else can interest the people at large. It 
farther implies the perfect freedom with which 
reporters may publish the transactions of public 
bodies. Without the latter, the admission of the 
public would hardly amount in our days to any 
publicity at all. We do not assemble in the markets 
as the people of antiquity did. The millions de¬ 
pending upon public information, in our national 
states, could not meet in the market, as was pos¬ 
sible in the ancient city-states, even if we had not a 
representative government. The journals are to 
modern freemen what the agora was to the Athe¬ 
nian, the forum to the Eoman, 

13 ^ 


150 


ON CIVIL LIBERTY 


Important as the printing of transactions, reports, 
and documents is, it is nevertheless true that 
oral discussions are a most important feature of 
Anglican publicity of legislative, judicial, and of 
many of the common administrative transactions. 
Modern centralized absolutism has developed a 
system of writing and secrecy, and consequent 
pedantry, abhorrent to free citizens who exist and 
feed upon the living word of liberty.^ Bureau- 
'cracy is founded upon writing, liberty on the 

* The following passage is given here for a twofold purpose. 
Everything in it applies to the government of the pen on the con¬ 
tinent of Em'ope, and it shows hoAV similar causes have produced 
similar results in India and under Englishmen, who at home are so 
adverse to government-writing and to bureaucracy. In the Notes 
on the North-western Provinces of India, by Charles Raikes, Ma¬ 
gistrate and Collector of Mynpoorie, London, 1853, we find the 
following passage: 

“ Action, however, and energy, are what we now lay most stress 
upon, because in days of peace and outward tranquillity these qua¬ 
lities are not always valued at their true price, and their absence is 
not so palpably mischievous as in more stirring times. There is 
more danger now of men becoming plodding, methodical, mere 
office functionaries, than of their stepping with too hasty a zeal 
beyond the limits of the law. There is truth, too, in Jacquemont’s 
sneer—India is governed by stationery, to a more than sufficient 
extent; and one of the commonest errors of our magistrates, -which 
they imbibe from constant and early Indian associations, is to mis¬ 
take writing for action, to fancy that dictation will supply the place 
of exertion. In no other country are so many written orders issued 
with so much confidence, received with such respect, and broken 
with such complacency. In fact, as for writing, we believe the 
infection of the ‘cacoethes scribendi’ must first have grown up in 
the East. It pervades everything, but is more rampant and more 
out of place in a police office than anywhere else. It was not the 
magistrates who originated this passion for scribbling; but they 
have never succeeded in repressing it, nor, whilst the law requires 



AND SELF-GOVERNMENT. 


151 


breathing word. I do not hesitate to point out 
orality, especially in the' administration of justice, 
in legislation and local self government, as an im¬ 
portant element of our civil liberty. I do not 
believe that a high degree of liberty can be imagined 
without widely pervading orality; but oral transac¬ 
tion alone is no indication of liberty. The patri¬ 
archal and tribal governments of Asia, the chieftain 
government of our Indians, indeed all primitive 
governments are carried on by oral transaction 
without any civil liberty. 

Publicus, originally Populicus, meant that which 
relates to the Populus, to the state, and it is signifi¬ 
cant that the term gradually acquired the meaning 
of public, as we take it—as significant, as it is that a 
great French philosopher, honored throughout our 
whole country, lately wrote to a friend: “ Political 
matters here are no longer public matters.”^ 

tliat every discontented old woman’s story shall be taken down in 
writing, is it to be expected they ever will. The Khayeths worship 
their pen and ink on certain festivals, and there is a sort of ‘ religio’ 
attaching to written forms and statements, which is not confined to 
official life, but pervades the whole social polity of the writing 
tribes. An Indian scribe, whose domestic expenditure may average 
sixpence a day, will keep an account-book with as many columns, 
headings, and totals, as would serve for the budget of a chancellor 
of the exchequer. To Tudor Mul and such worthies we owe, no 
doubt, a great deal for the method and order which they infused 
into public records; but we have also to thank these knights of the 
pen for the plaguiest long-figured statements, and the greatest 
number of such statements, which the world ever saw.” Well may 
the continental European, reading this, exclaim; C’est tout comme 
chez nous! 

2 This observation followed a request to write henceforth with 
caution, because, said he, choses politiques ne sont plus ici choses 
publiques. 



152 


ON CIVIL LIBERTY 


Ill free countries political matters relate to the 
people, and therefore ought to be public. Publicity 
informs of public matters; it teaches, and educates, 
and it binds together. There is no patriotism with¬ 
out publicity, and though publicity cannot always 
prevent mischief, it is at all events an alarm bell, 
which calls the public attention to the spot of 
danger. In former times secrecy was considered 
indispensable in public matters ; it is still so where 
cabinet policy is pursued, or monarchical absolutism 
sways; but' even these governments have been 
obliged somewhat to yield to a better spirit, and even 
Eussia publishes occasionally government reports. 

That there are certain transactions which the 
public service requires to be withdrawn for a time 
from publicity, is evident. We need point only to 
diplomatic transactions when not yet brought to a 
close. But even with reference to these, it will be 
observed that a great change has been wrought in 
modern times, and comparatively a great degree of 
publicity now prevails even in the foreign inter¬ 
course of nations—a change of which the United 
States have set the example. A state secret was 
formerly a potent word, while one of our first states¬ 
men wrote to the author, many years ago: I would 
not give a dime for all the secrets that people may 
imagine to be locked up in the United States 
archives. 

It is a remarkable fact that no law insures the 
publicity of the courts of justice, either in England 
or the United States. Our constitution insures 


AND SELF-G0VERN3kIENT. 153 

neither tlie publicity of courts nor that of congress,. 
and in England tlie admission of the public to the 
commons or the lords is merely by sufferance. The 
public may at any time be excluded merely by a 
member observing to the presiding officer that 
strangers are present, while we all know that the 
candid publication of the debates was not permitted 
in the times of Dr. Johnson. Yet so thoroughly is 
publicity now ingrained in the American and Eng¬ 
lishman that a suppression of this precious principle 
cannot even be conceived of. If any serious at¬ 
tempt could be made to carry out the existing law 
in England, and the public were really excluded 
from the house of commons, a revolution would be 
unquestionably the consequence, and publicity would 
be added to the declaration of rights. We can no 
more imagine England or the United States without 
the reporting newspapers, than nature without the 
principle of vegetation. 

The principle of publicity so pervaded all the 
American politics, that the framers of our constitu¬ 
tion probably never thought of it, or if they did, 
they did not think it worth while to provide for it 
in the constitution, since no one had doubted it. It 
is part and parcel of our common law of political 
existence. They did not trouble themselves with 
unnecessaries, or things which would have had a 
value only as possibly completing a certain sym¬ 
metry of theory. 

It is, however, interesting to note that the first 
distinctly authorized publicity of a legislative body 


154 


ON CIVIL LIBERTY 


in modern times, was tliat of tlie Massaclinsetts 
liouse of representatives, wliicli adopted it in 1766d 
Publicity of speaking kas its dangers, and occa¬ 
sionally exposes to grave inconveniences, as all 
guarantees do, and necessarily in a greater degree as 
they are of a more elementary cliaracter. It is the 
price at wliicb we enjoy all excellence in tliis world. 
The science of politics and political ethics must point 
out the dangers as well as the formal and moral 
checks which may avert or mitigate the evils arising 
from publicity in general, and public oral transaction 
of business in particular. It is not our business here. 
We treat of it in this place as a guarantee of liberty, 
and have to show its indispensableness. Those who 
know liberty as a practical and traditional reality 
and as a true business of life, as we do, know that 
the question is not whether it be better to have 
publicity or not, but, being obliged to have it, how 
we can best manage to avoid its dangers while we 

3 I follow the opinion of Mr. Robert C. Wintlirop, late speaker 
of the American house of representatives, and believe him to be 
correct, when, in an able Address before the Maine Historical So¬ 
ciety (Boston, 1849), he says: “ The earliest instance of authorized 
publicity being given to the deliberations of a legislative body in 
modern days, was in this same house of representatives of Massa¬ 
chusetts, on the 3d day of June, 1766, when, upon motion of James 
Otis, and during the debates which arose on the question of the 
repeal of the stamp act, and of compensation to the sulferers by the 
riots in Boston, to which that act had given occasion, a resolution 
was carried ‘ for opening a gallery for such as wished to hear the 
debates.’ The influence of this measure in preparing the public 
mind for the great revolutionary events which were soon to follow, 
can hardly be exaggerated.” 



AND SELF-GOVEENMENT. 


155 


enjoy its fullest benefit and blessing. It is the same 
as with the air we breathe. The question is not 
whether Ave ought to dispense with a free respiration 
of all-surrounding air, but how, with free inhalation, 
we may best guard ourselves against colds and other 
distempers caused by the elementary requisite of 
physical life, that we must live in the atmosphere."* 

* Great as the inconvenience is which arises from the abuse 
of public speaking, and of that sort of prolixity which in our 
country is familiarly called by a term understood by every one, 
Speaking for Buncombe, yet it must be remembered that the freest 
possible, and, therefore, often abused latitude of speaking, is fre¬ 
quently a safety-valve, in times of public danger, for which nothing 
else can be substituted. The debates in congress, when lately the 
Union itself Avas in danger, lasted for entire months, and words 
seemed fairly to weary out the nation when every one called for 
action. There Avas no citizen capable of folloAving closely all those 
lengthy and occasionally empty debates, with all their lateral issues. 
Still, now that the whole is over, it inayAvell be asked Avhether there 
is a single attentive and experienced American who doubts that, had 
it not been for that flood of debate, we must have been exposed to 
civil disturbances, perhaps to the rending of the Union. 

NeA'ertheless, it is a fact that the more popular an assembly is, 
the more liable it is to sutfer from verbose discussions, and thus to 
see its action impeded. This is especially the case in a country in 
which, as in ours, a personal facility of public speaking is almost 
universal, and Avhere an elocutional laxity coexists with a patient 
tenacity of hearing, and a love of listening which can never be 
surfeited. It has its ruinous effect upon oratory, literature, the 
standard of thought, upon Augorous action, on public business, and 
gives a wide field to dull mediocrity. This anti-Pythagorean evil 
has led to the adoption of the “one hour rule” in the house of 
representatives in congress, and (in 1847) in the supreme court of 
the United States. The one-hour rule was first proposed by Mr. 
Holmes, of Charleston, in imitation of the Athenian one hour clep¬ 
sydra—yes, the prince of orators had that dropping monitor by 



156 


ON CIVIL LIBERTY 


Liberty, I said, is coupled with the public word, 
and however frequently the public word may be 
abused, it is nevertheless true that out of it arises 
oratory—the aesthetics of liberty. What would 
Greece and Eome be to us without their Demosthenes 


his side!—and is now renewed by every new house. The English 
have begun to feel the same evil, and the adoption of the same rule 
was proposed in the commons, in February, 1849. But the debate 
concluded adversely to it, after sir Robert Peel had adverted to 
Burke’s glorious eloquence. Our one-hour rule, however, is not 
entirely new in modern times. In the year 1562 (on the 21st July), 
the council of Trent adopted the rule that the fathers in delivering 
their opinions should be restricted to half an hour, which having 
elapsed, the master of ceremonies was to give them a sign to leave 
off. Yet, on the same day, an exception was made in favor of Sal- 
meron, the pope’s first divine, who occupied the Avhole sitting 
(History of the Life of Reginald Pole, by T. Phillips, Oxf. 1764, 
page 397), very much as, in February, 1849, the whole American 
house called “go on,” when governor McDowel had spoken an 
hour. He continued for several hours. 

Having mentioned the inconvenience of prolix speaking, it may not 
be improper to add another passage of the address of ]Mr. Winthrop, 
already mentioned. It will be recollected that this gentleman has 
been speaker. He knows, therefore, the inconvenience in its whole 
magnitude. “ Doubtless,” he says, “when debates were conducted 
with closed doors there were no speeches for Buncombe, no clap¬ 
trap for the galleries, no flourishes for the ladies, and it required 
no hour rule perhaps to keep men within some bounds of relevancy. 
But one of the great sources of instruction and information, in 
regard both to the general measm*es of government and to the par¬ 
ticular conduct of their own representatives, was then shut out from 
the people, and words which might have roused them to the vindica¬ 
tion of justice or to the overthrow of tyranny were lost in the 
utterance. The perfect publicity of legislative proceedings is hardly 
second to the freedom of the press, in its influence upon the progress 
and perpetuity of human liberty, though, like the freedom of the 
press, it may be attended with inconveniences and abuses.” 



AND SELF-GOVERNMENT. 


157 


and Cicero ? And what would their other writers 
have been, had not their languages been coined ont 
by the orator? What would England be without 
her host of manly and masterly speakers? Who 
of us could wish for a moment to see the treasures 
of our own civilization robbed of the words contri¬ 
buted by our speakers, from Patrick Henry to Web¬ 
ster ? The speeches of great orators are a fund of 
wealth for a free people, from which the school-boy 
begins to draw when he declaims from his Eeader, 
and which enriches, elevates, and nourishes the souls 
of the old. 

Publicity is indispensable to eloquence. Who can 
speak in secret before a few ? Orators are in this 
respect like poets—their kin, of whom Groethe, “ one 
of the craft,” says that they cannot sing unless they 
are heard. 

All governments hostile to liberty are hostile to 
publicity, and parliamentary eloquenee is odious to 
them, because it is a great power which the execu¬ 
tive can neither create nor control. Mr. de Morny, 
brother of Napoleon the Third, issued a circular to 
the prefects, when minister of the interior, in 1852, 
in whieh the publicity of parliamentary government 
is called theatricals. It is remarkable that this de¬ 
claration should have come from a government 
which, above all others, seems, in a great measure, 
to rely on military and other shows. 


VOL. I. —14 


158 


ON CIVIL LIBEETY 


CHAPTEE XIV. 

SUPREMACY OF THE LAW. TAXATION. DIVISION OF 
POWER. 

19. The supremacy of the law, in the sense in 
which it has already been mentioned, or the protec¬ 
tion against the absolutism of one, of several, or the 
people (which, practically, and for common transac¬ 
tions, means of course the majority), requires other 
guarantees or checks of great importance. 

It is necessary that the public funds be under 
close and efiQ.cient popular control, chiefly, therefore, 
under the supervision of the popular branch of the 
legislature, which is likewise the most important 
branch in granting the supplies, and the one in 
which, according to the English and American fund¬ 
amental laws, all money bills must originate. The 
English are so jealous of this principle, that the 
commons will not even allow the lords to propose 
amendments affecting money grants or taxation. 

If the power over the public treasury, and that of 
imposing taxes, be left to the executive, there is an 
end to public liberty. Hampden knew it when he 
made the trifling sum of a pound of unlawfully im- 


AND SELF-GOVERNMENT. 


159 


posed ship-money a great national issue, and our De¬ 
claration of Independence enumerates, as one of the 
gravest grievances against the mother country, that 
England “ has imposed taxes without our consent.” 

One of the most serious mistakes of those who are 
not versed in liberty is to imagine that liberty consists 
in withholding the necessary power from government.* 
Liberty is not of a negative character. It does not 
consist in merely denying power to government. Go¬ 
vernment must have power to perform its functions, 
and if no provision is made for an orderly and or¬ 
ganic grant of power, it will in cases of necessity ar¬ 
rogate it. A liberty thus merely hedging in, would 
resemble embankments of our Mississippi, without 
an outlet for freshets. No one believes that there 
is time enough to repair the crevasse. This applies 
to all subjects of government, and especially to ap¬ 
propriations of money. Merely denying money to 
government, or, still worse, not creating a proper 
organism for granting it, must lead either to inanity 
or to executive plundering; but it is equally true 
that the strictest possible limitation and hedging in 
by law, of the money grants, are as requisite for the 
cause of liberty as the avoidance of the error I have 
just pointed out. This subject is well treated in our 
Federalist,^ and the insufficiency of our ancient 
articles of confederation was one of the prominent 
causes which led our forefathers to the adoption of 
the federal constitution. Lord Nugent truly calls 


1 Federalist, No. XXX. and sequel, Concerning Taxation, and 
other parts of ^hat sage book. 



160 


ON CIVIL LIBERTY 


tlie power of granting or refusing supplies, vested in 
parliament, but especially in the bouse of commons, 
or, as be says, “ tbe entire and independent control 
^of parliament over tbe supplies,” “ tbe stoutest but¬ 
tress of tbe English constitution.”^ 

It is tbe Anglican principle to make but short 
appropriations, and that appropriations be made for 
distinct purposes. We insist still more on this prin¬ 
ciple than tbe English, and justly demand that ap¬ 
propriations be made as distinct and specific as 
possible, and that no transfer of appropriations by 
tbe executive take place; that is to say, that tbe exe¬ 
cutive be not authorized to use a certain appropria¬ 
tion, if not wholly spent, partially for purposes for 
which another appropriated sum has proved to be 
insufficient. It is not only necessary for vigorous 
civil liberty that tbe legislature, and chiefly tbe 
popular branch of it, keep tbe purse-strings of tbe 
public treasury; but also that tbe same principle be 
acted upon in all minor circles of tbe vast public 
fabric. Tbe money of tbe people must be under tbe 
control of tbe people, and not at tbe disposal of 
officials unconnected with tbe people. 

Tbe history of tbe control over tbe public funds, 
in granting, specifying and spending them, may well 
be said to be a continuous and accurate index of tbe 
growth of English liberty. It is this principle which 
has essentially aided in establishing self-government 
in England; and wdiicb has made tbe bouse of com¬ 
mons the real seat of tbe national government as 


Memorials of John Hampden, London, 1832, vol. i. p. 212. 



AND SELF-GOVERNMENT. 


161 


we now find it. Every one knows that the “ sup¬ 
plies” are the means by which the English effect in 
a regular and easy way that which the Koraan 
populus occasionally and not regularly effected 
against the senate by a refusal to enlist in the army, 
when war was at the gates of the city.^ 

The history of the British civil list, or the per¬ 
sonal revenue granted to the monarch at the be¬ 
ginning of his reign, is also instructive in regard to 
this subject. In the middle ages the monarch was 
the chief nobleman, and had, like every other noble¬ 
man, his domains, from which he drew his revenue. 
Taxes were considered extraordinary gifts. As the 
monarch, however, wanted more money, either for 
just or unjust purposes, loans were made, which 
were never redeemed. Mr. Francis correctly ob¬ 
serves, that it is absurd to charge William the Third 
with having created a public debt, as Hume and so 
many others have done. William the Third, on the 
contrary, was the first monarch who treated loans 
really as loans, and provided either for their repay¬ 
ment or the payment of interest.'* * 

As civil liberty advanced, all revenue of the 
monarch, independent of the people, was more and 
more withdrawn from him, and crown domains 


® Chatham, when minister of the crown in 1759, and while lord 
Clive was making his great conquests in the East, said that neither 
the East India Company nor the crown ought to have that immense 
revenue. If the latter had it, it would endanger all liberty.— 
Chatham’s Cori’espondence, vol. i. 

* Francis, Chronicles and Characters of the Stock Exchange. 

14-)f 



162 


ON CIVIL LIBERTY 


were more and more made public domains, until 
we see George tlie Tliird giving up all extra-parlia¬ 
mentary revenue. Tlie monarch was made depend¬ 
ent on the civil list exclusively. 

20. It is farther necessary that the power of 
making war essentially reside with the people, and 
not with the executive. In England, it is true, the 
privilege of making war and concluding peace is 
called a royal prerogative, but as no war can be car¬ 
ried on without the nervus rerum gerendarum, it is 
the commons who decide whether the war shall be 
carried on or not. They can grant or decline the 
authority of enlisting men, and the money to sup¬ 
port them and to provide for the Avar. The consti¬ 
tution of the United States decrees that congress 

- O 

'shall have power to make Avar,^ and an American 
declaration of Avar must be passed by congress like 
any other laAV. A declaration of Avar by the United 
States is a law. 

Where the executive has not only the nominal, 
but the real poAvnr of declaring Avar, \xe cannot speak 
of civil liberty or of self-government; for that Avhich 
most essentially affects the people in all their rela- 


^ It may as well be observed here that congress means the 
senate and house of representatives. The president is not included 
in the term. Parliament, on the other hand, means commons, 
lords and king. Practically speaking, the difference is not great; 
for, the president has the veto power, of which he makes occasional 
use, while the king of England has not made any use of it for about 
a century. The English administration would resign before it 
would become necessary in their eyes to veto a bill. But the king 
of England has the greatest of all veto powers—he can dissolve 
parliament, which our executive cannot do. 



AND SELF-GOVERNMENT. 


163 


tions, is in that case beyond their control. Even 
with the best contrived safe-guards, and a deeply 
rooted tradition, it seems impossible to guard against 
occasional high-handed assumption of power by the 
executive in this particular. Whatever our late 
Mexican war ultimately became in its character, 
there is probably now no person who will deny that, 
in its beginning, it was what is called a cabinet war. 
It was commenced by the cabinet, which, after hos¬ 
tilities had begun, called on government to ratify 
its measures. 

It has already been stated (paragraph 13) that 
a perfect dependence of the forces upon the civil 
power is an indispensable requisite and element of 
civil liberty. 

21. The supremacy of the law and that unstinted 
protection of the individual as well as of society, in 
which civil liberty essentially consists, require on 
the one hand the fullest possible protection of the 
minority, and, on the other hand, the security of the 
majority that no factious minority or cabal shall 
rule over it. 

The protection of the minority leads to that great 
institution, as it has been boldly but not inappro-^ 
priately called—the opposition. A well organized 
and fully protected opposition, in and out of the 
legislature—a loyal opposition, by which is meant a 
party which opposes, on principle, the administra¬ 
tion or the set of men who have, for the time being, 
the government in their hands, but does so under 
and within the common fundamental law, is so im¬ 
portant an element of civil liberty, whether con- 


164 


ON CIVIL LIBEETY 


sidered as a protecting fence or as a creative power, 
that it would be impossible here to give to the sub¬ 
ject that space which its full treatment would require. 
I have attempted to do so, and to sketch its history, 
in my Political Ethics. 

The elaboration of that which we call an opposi¬ 
tion, is an honor which belongs to the English, and 
seems to me as great and as noble a contribution to 
the treasures of civil freedom, as the development of 
the power of our supreme courts (of the United 
States and of the different states) to declare, upon 
trial of specific cases, a law passed by the legislature 
unconstitutional and void. They are two of the 
noblest acquisitions in the cause of liberty, order 
and civilization. 

22. The majority, and through it the people at 
large, are protected by the principle that the admi¬ 
nistration is founded upon party principles, or, as it 
has been called, by a government by party, if by 
party we mean men who agree on certain “ leading 
general principles in government”® in opposition to 
others, and act in unison accordingly. If by party 
be understood a despicable union of men, to turn 
out a certain set of office-holders merely to obtain 
the lucrative places, and, when they are obtained, a 
union to keep them, it becomes an odious faction of 
placemen or office-hunters, the last of those citi¬ 
zens to whom the government ought to be intrusted. 
The ruinous and rapidly degrading effect of such a 


e Burke. 



AND SELF-GOVERNMENT. 


165 


state of tilings is directly contrary to sound liberty, 
and serves as a fearful encouragement to those, who, 
politically speaking, are the most worthless. But 
freedom of thought and action produces contention 
in all spheres, and, where great tasks, are to be per¬ 
formed and where important interests are at stake, 
those who agree on the most important principles, 
will unite and must do so in order to be sufficiently 
strong to do their work. Without party adminis¬ 
tration, and party action, it is impossible that the 
majority should rule, or that a vigorous opposition 
can rise to a majority and rule in turn. Liberty re¬ 
quires a parliamentary government, and no truly 
parliamentary government can be conceived of with¬ 
out the principle of party administration. It became 
fully developed under George the First, or we should 
rather say under sir Eobert Walpole. Under the 
previous governments mixed cabinets of whigs and 
tories were common, when court intrigues and indi¬ 
vidual royal likings and dislikes had necessarily 
often a greater effect than national views and inter¬ 
ests, to which it is the object of party administration 
to give the sway. We have to deal with parties, in 
this place, only as connected with civil liberty. 

For their dangers, their affinity to faction as well as 
their existence in the arts, sciences, religion and even 
in trades—in fact, wherever free action is allowed; for 
the public inconvenience and indeed danger in having 
more than two parties; the necessity that political 
parties should be founded upon broad comprehensive 
and political principles, and for other important 


166 


ON CIVIL LIBERTY 


matters connected with, the subject of parties, I must 
refer to other places/ 

23. ,A principle and guarantee of liberty, so 
acknowledged and common with the Anglican peo¬ 
ple that few think of its magnitude, yet of really 
organic and fundamental importance, is the division 
of government into three distinct functions, or rather 
^ the keeping of these functions clearly apart. 

It is, as has been mentioned, one of the greatest 
political blessings of England, that from a very early 
period her courts of justice were not occupied with. 
“ administrative business,” for instance, the collection 
of taxes, and that her parliament became the exclu¬ 
sive legislature, while the parliaments of France 
united a judicial, legislative, and administrative 
character. The union of these functions is abso¬ 
lutism, despotism on the one hand, and slavery on 
the other, no matter in whom they are united, 
whether in one despot or in many, or in the multi¬ 
tude, as in Athens after the time of Cleon, the tanner. 
The English political philosophers have pointed out 
the necessity of keeping the three powers separate in 
a “constitutional” government, long ago.® Those, 
however, who have no other definition of liberty 

These subjects have been considered at length in the Political 
Ethics. The reader will peruse with advantage the chapter on 
Party in lord John Russell’s Essay on the History of the English 
Government and Constitution, 2d edit. London, 1823. 

8 For instance, Locke. Montesquieu, at a later period, is gene¬ 
rally considered the political philosopher who first distinctly con¬ 
ceived the necessity of the division of power. The English practised 
it earliest and established it most clearly; and the French have again 
given it up, for a time at least, ever since the revolution of 1848, 



AND SELF-GOVERNMENT. 


167 


than that it is equality, discard this division, except 
indeed so far as the mere convenience of transacting 
business would require. 

We have seen already that a distinguished French 
publicist, Mr. Girardin, declares himself for an un-1 
divided public power.® Unitd du pouvoir is the 
watchword of the French republicans, and it is the 
very principle with which Louis Napoleon check¬ 
mated them. It belongs to what may well be called/ 
Eousseauism. Eousseau is distinctly against division 
of power. His Social Contract became the political 
bible of the convention-men, and it has ever since 
kept a firm hold on the mind of a very large part of 
the French people, probably of the largest portion. 
Indeed, we may say that the two great types of 
government now existing among the civilized and 
striving portion of mankind are representative (or, 
as the French choose to call it, parliamentary) go¬ 
vernment, which is essentially of a co-operative 
character—it is the government of Anglican liberty; 
and unity of power, the Gallican type. The French 
people themselves are divided according to these two 
types. Mr. Guizot may perhaps be considered as the 
'French representative of the first type. A pamphlet, 
on the other hand, on government, and generally 
ascribed to Louis Napoleon, published not long before 
the explosion of the republic, for which it was evi- 


nor has it ever been properly carried out by them, their principle 
of centralization preventing it. See Pol. Ethics, book ii. c. xxiii. 

^ He has repeatedly given his views, but especially in an elaborate 
and brilliantly written, but, according to our opinion, superficial 
paper on the question, why the republic (of 1848) came to a fall. 





168 


ON CIVIL LIBEKTY 


dently intended to prepare the public mind, advocates 
the unity of power in the last extreme, and as a truly 
French principle. 

' We believe that the so-called unity of power is 
unvarnished absolutism. It is indifferent who wields 
it. We insist upon the supremacy, not the abso¬ 
lutism, of the legislature. We require the harmoni¬ 
ous union of the co-operative whole, but abhor the 
unity of power. 

What the French republicans demand in the name 
of the democracy, kings insist upon in the name of 
divine right. Both loudly protest against the “ divi¬ 
sion of sovereignty,” which can only mean a clear 
division of power; for -^hat in a philosophical sense 
can truly be called sovereignty, can never be di¬ 
vided, and its division need not, therefore, be guarded 
against. Sovereignty is the self-sufficient source of 
all power, from which alj specific powers are derived. 
It can dwell, therefore, according to the views of 
freemen, with society, the nation only; but sovereignty 
is not absolutism. It is remarkable how all abso¬ 
lutists, monarchical or democratic, agree on the unity 
of power.^° 


^0 Innumerable official instances might be cited. The king of 
Prussia, when, in May, 1847, he delivered his first throne speech 
to the united committees of the provincial estates, which were to 
serve as a substitute for the expected estates general, “appealed 
in advance to his people,” against everything we are accustomed 
to call constitutional. “My people does not want a participation 
of representatives in ruling, .... nor the division of sovereignty, 
nor the breaking up of the plenitude of royal power,” &c. General 
Bonaparte wrote to the Directory, May 14, 1796: “One bad 
general is even better than two good ones. War is like govern- 



AND SELF-GOVERNMENT. 


169 


Power, according to its inherent nature, goes on 
increasing, until checked. The reason is not that 
power is necessarily of an evil tendency, but because 
without it, it would not be power.” Montesquieu 
says: “It is a lasting experience that every man 
who has power is brought to the abuse of it. He 
goes on until he finds its limits.’”^ And it is so with 
“ every man,” because it lies in the very nature of 
power itself. The reader is invited to re-peruse the 
Federalist on this weighty subject.” 

The unity of power doubtless dazzles, and thus is 
the more dangerous. The French ought to listen 
to their own great countryman. He says: “ A 
despotic government (and all unity of power is 
despotic) strikes the eye (saute pour ainsi dire aux 
yeux); it is uniform throughout: as it requires 
nothing but passions to establish it, all sorts of 
people are sufficiently good for it.”” 

Our own Webster, in his speech on the presi¬ 
dential protest, delivered the following admirable 
passage on the subject of which we treat, and on 
liberty in general—a passage which I give entire, in 
spite of its length, because I cannot find the courage 


ment, it is a matter of tact”—words which Mr. Girardin quotes 
with approval, and as an authority for his theory of the best govern¬ 
ment, consisting in a succession of perfectly absolute single rulers 
to be appointed, and at pleasure recalled by universal suffrage. 

This I have endeavored plainly to show in the Political Ethics. 

*2 Esprit des Loix, xi. 5. 

Mr. Madison’s paper on The Meaning of the Maxim, which 
requires a Separation of the Departments of Power, examined and 
ascertained. Federalist, No. XLVII. and sequ. 

** Esprit des Loix, book vc. 14. 

VOL. I.— 15 




170 


ON CIVIL LIBERT V 


to mutilate it. I have tried to select some sentences, 
but it seemed to me like attempting to break off 
some limbs of a master work of sculpture which has 
happily come down to us entire. 

Mr. Webster said: “ The first object of a free people 
/^is the preservation of their liberty, and liberty is only 
/ to be preserved by maintaining constitutional re- 
L^traints and just divisions of political power,. Nothing 
is more deceptive or more dangerous than the pretence 
of a desire to simplify government. The simplest 
governments are despotisms; the next simplest limited 
monarchies; but all republics, all governments of law, 
must impose numerous limitations and qualifications 
of authority, and give many positive and many quali¬ 
fied rights. In other words, they must be subject to 
rule and regulation. This is the very essence of free 
political institutions. 

f “ The spirit of liberty is, indeed, a bold and fearless 
/ spirit; but it is also a sharp-sighted spirit; it is a cau- 

i 

I - 

The speech was delivered in the Senate of the United States 
on the 7th of May, 1834. If I might place myself by the side of 
these men I would refer the reader to the Political Ethics, where I 
stated that despotism is simple and coarse. It is like a block of 
granite, and may last in its unchanging coarseness a long time; but 
liberty is organic with all the delicate vitality of organic bodies, 
with development, growth and expansion. Despotism may have 
accretion, but liberty widens by its own vital power, and gains in 
intensity as it expands. The long duration of some despotisms 
decides nothing. Longevity of states is indeed a requisite of 
modern civilization, but if we must choose, who would not prefer a 
few hundred years of Ptoman liberty, to the thousands of Chinese 
dreary mandarinism and despotism ? Besides, we must not forget 
that a shoe once trodden down to a slipper, will always serve longer 
in the slip-shod capacity of a slipper than it did as a decent shoe. 



AND SELF-GOVERNMENT. 


171 


tious, sagacious, discriminating, far-seeing intelligence; 
it is jealous of encroachment, jealous of power, jealous 
of man. It demands checks; it seeks for guards; it 
insists on securities; it entrenches itself behind strong 
defences, and fortifies itself with all possible care 
against the assaults of ambition and passion. ""'It does 
not trust the amiable weaknesses of human nature, 
and therefore it will not permit power to overstep its 
prescribed limits, though benevolence, good intent 
and patriotic purpose come along with it. Neither ■ 
does it satisfy itself with flashy and temporary resist- / 
ance to its legal authority. Far otherwise. It seeks 
for duration and permanence. It looks before and 
after; and, building on the experience of ages which 
are past, it labors diligently for the benefit of ages to 
come. This is the nature of constitutional liberty; 
and this is our liberty, if we will rightly understand 
and preserve it. Every free government is necessarily 
complicated, because all such governments establish 
restraints, as well on the power of government itself 
as on that of individuals. ^ If we will abolish the dis¬ 
tinction of branches, and have but one branch; if we 
will abolish jury trials, and leave all to the judge; if 
we will then ordain that the legislator shall himself 
be that judge; and if we place the executive power 
in the same hands, we may readily simplify govern¬ 
ment. We may easily bring it to the simplest of all 
possible forms, a pure despotism. But a separation 
of departments, so far as practicable, and the pre-. 
servation of clear lines of division between them, is 
the fundamental idea in the creation of all our con- 


172 


ON CIVIL LIBERTY 


stitutions; and, doubtless, the continuance of regulated 
liberty depends on maintaining these boundaries.”*® 
Unity of power, if sought for in a wide-spread 
democracy, must always lead to monarchical abso- 
lutism. Yirtually it is such; for it is indifferent what 
the appearance or name may be, the democracy is 
not a unit in reality; yet actual absolutism existing, 
it must be wielded by one man. All absolutism is 
therefore essentially a one-man government. The 
ruler may not immediately take the crown; the pear 
may not yet be ripe, as Napoleon*^ said to Sieyes; 
but it soon ripens, and then the avowed absolute 
ruler has far more power than the king whose abso¬ 
lute power is traditional, because the tradition itself 
brings along with it some limitations by popular 
opinion. Of all absolute monarchs, however, it is true 
that “ it is the vice of a pure (absolute) monarchy to 
raise the power so high and to surround it with so 
much grandeur that the head is turned of him who 
possesses it, and that those who are beneath him 
scarcely dare to look at him. The sovereign be¬ 
lieves himself a god, the people fall into idolatry. 
People may then write on the duties of kings and 
the rights of subjects; they may even constantly 


Page 122, vol. iv. of the Works of Daniel Webster. I have not 
transcribed this long passage without the permission of those who 
have the right to give it. 

To my mind it appears the most Demosthenian passage of that 
orator. Perhaps I am biased, becadse the extract maintains what I 
have always asserted on the nature of liberty, and what has shown 
itself with such remarkable clearness and undraped nakednoss in 
the late French affairs. 

*71 mean Napoleon the Real. 



AND SELF-GOVERNMENT. 


173 


preach upon them, but the situations have greater 
power than the words, and when the inequality is 
immense, the one easily forgets his duties, the others 
their rights.’®” Change the terms, and nearh^ every 
word applies to absolute democracies with equal 
truth. 


Guizot, Essais sur Tllistoire de France, p. 359. 

General Rapp, first aid of Napoleon, gives a good picture of the 
false position of an absolute monarch, in his Memoirs, Paris, 
1832, ch. 2. He says that “whenever Napoleon was angry, 
his confidants, far from appeasing him, increased his anger by 
their representations. ‘ Your majesty is right,’ they would say : 

‘ such a person has merited to be shot, or disgraced, or discarded. 

'. . . I have long known him to be your enemy. Examples are 
necessary; they are necessary for the maintenance of tranquillity.’ 
When it was required to levy contributions from the enemies’ coun¬ 
try and Napoleon would perhaps ask for twenty thousand, he was 
advised to demand ten more. If it was the question to levy two 
hundred thousand men, he was persuaded to ask for three hun¬ 
dred thousand; in liquidating a debt which was indisputable, they 
would insinuate doubts on its legitimacy, and would often cause 
him to reduce to a half, or a third, and sometimes entirely the 
amount of the demand. If he spoke of making war, they would 
applaud the noble resolution: war alone would enrich France; it 
was necessary to astonish the world in a manner suitable to the 
power of the great nation. Thus it was that in provoking and en¬ 
couraging expectations, and uncertain enterprises, he was precipi¬ 
tated into continual wars. Thus it is that they succeeded in giving 
to his reign a character of violence which did not belong to him. 
His disposition and habits were altogether good-natured. Never a 
man was more inclined to indulgence and more awake to the voice 
of humanity. I could cite thousands of examples.” 

Whether Napoleon was good -natured or not need not be discussed 
here, nor is it important to state that he was not so weak as repre¬ 
sented by Rapp, but it is instructive to see how a man like Rapp, an 
uncompromising absolutist, unawares lays bare his own opinion of 
the character of an absolute monarch, because he is absolute. 

15 * 



174 


ON CIVIL LIBERTY 


Absolnte moiiarclis, indeed, often allow free words. 
The philosopher Kant uttered remarkable political 
sentiments under Frederic the Great, and Montes¬ 
quieu published his Spirit of Laws under the aus¬ 
pices of Madam de Tincin, the chanoiness mistress 
of the duke of Orleans, regent of France, and suc¬ 
cessively of many others. Montesquieu was favored 
by these persons, for very frequently people have a 
sentimental love for the theory of liberty. But nei¬ 
ther Kant nor Montesquieu would have been suffered 
to utter their sentiments had there been any fear 
whatever that they might pass into reality. There 
is an immense difference between admiring liberty 
as a philosophical speculation, loving her like an 
imaginary beauty by sonnet and madrigal, and unit¬ 
ing with her in real wedlock for better and worse. 


ANB SELF-GOVERNMENT. 


175 


CHAPTER XY. 

RESPONSIBLE MINISTERS. COURTS DECLARING LAWS 
UNCONSTITUTIONAL. REPRESENTATIVE GOVERNMENT. 

24. It is not only necessary that every officer re¬ 
main individually answerable for his acts, but it is 
equally important that no act be done for which some 
one is not responsible. This applies in particular, so 
far as liberty is to be protected, to that branch of 
government which directs the military. It is im¬ 
portant, therefore, that no decree of government go 
forth without the name of a responsible person; and 
that the officers, or single acts of theirs, shall be tried 
by regular action at law, or by impeachment; and 
that no positive order by the supreme executive, even 
though this be a king, as in England, be allowed as 
a plea for impunity. A long time elapsed before this 
principle came clearly to be established in England. 
Charles the First reproved the commons for proffer¬ 
ing their loyalty to his own person, while they op¬ 
posed his ministers and measures which he had 
personally ordered. England in this, as in almost 
all else that relates to constitutional liberty, had the 
start of the continent by two hundred years and 
more. The same complaints were heard on the con¬ 
tinent of Europe when lately attempts were made to 


176 


ON CIVIL LIBERTY 


establish liberty in monarchies; and more will be 
heard when the time of new attempts shall have 
arrived. Eesponsible ministers, and a cabinet de¬ 
pendent upon a parliamentary majority, were the 
objects of peculiar distaste to the present emperor of 
the French, as they have been to all absolute mo- 
narchs. His own proclamations distinctly express it, 
and his newspapers continue to decry the servile 
position of government when ministers are in the 
service of a house of representatives. 

In unfree countries, the principle prevails that 
complaints against the act of an officer, relating to 
his public duty, must be laid before his own supe¬ 
riors. An overcharge of duty on imported goods 
cannot there be tried before a comiiion court, as is 
the case with us. 

25. As a general rule, it may be said that the 
principle prevails in Anglican liberty, that the execrb- 
tive may do that which is positively allowed either 
by the fundamental or other law, and not all that 
which is not prohibited. The royal prerogatives of 
'^he English crown doubtless made the evolution of 
this principle difficult, and may occasionally make 
clear action upon it still so; but the modern develop¬ 
ment of liberty has unquestionably tended more and 
more distinctly to establish the principle that for 
everything the e xecutive does th ere must be the war- 
rant of the law. The principle is of high importance, 
aucTitiieed hardly to be added that it forms one of 
the prominent elements of American liberty. Our 
presidents, indeed, have done that for which many 
citizens believed they had no warrant in the law, for 







AND SELF-GOVERNMENT. 


177 


instance when general Jackson removed the public 
deposits from the bank of the United States, but the 
doubt consisted in the question whether the law war¬ 
ranted the measure or not. It was not claimed that 
he could do it because it was nowhere prohibited. 
The constitution of the United States declares that 
“ the powers not delegated to the United States by 
the constitution, nor prohibited by it to the states, 
are reserved to the states respectively, or to the peo¬ 
ple and the principle which I have mentioned may 
be considered as involved in it; but in the different 
states, where the legislature certainly has the right, 
as a general rule, to do all that seems necessary for 
the common welfare and is not specifically prohibited, 
the mentioned principle prevails regarding the ex¬ 
ecutive.^ 


* I have already mentioned the judgment given by the French 
court, with reference to the opening of letters by the police, in order 
to find out the traces of offences. I now give an extract, and shall 
Italicize those passages which bear upon the subject above: 

“Considering that if, by the terms of existing legislation, and 
particularly by art. 187 of the penal code, functionaries and agents 
of the government, and of the post-office administration, are for¬ 
bidden either to suppress or to open letters confided to the said 
administration, this disposition cannot reach the prefect of police, 
acting by virtue of powers conferred upon him by art. 10 of the 
Code of Criminal Instruction: 

“ Considering that the law, in giving to him the mission to in¬ 
vestigate offences, to collect evidence in support of them, and to 
hand their authors over to the tribunals charged with punishing 
them, has not limited the means placed at his disposition for attaining 
that end: 

“ That, in fact, the right of perquisition in aid of judicial instruc¬ 
tions is solemnly affirmed by numerous legal dispositions, and that 
it is of common law in this matter: 



178 


ON CIVIL LIBEKTY 


26 . The supremacy of the law requires that where 
enacted constitutions^ form the fundamental law there 


“ That the seizure in question was made in order to follow the trace 
of an offence ; that it resulted in the discovery of useful and important 
facts ; that, finally, the authors of the said letters have been prose¬ 
cuted in a court of justice: 

“Considering, moreover, that the court is not called upon to in¬ 
quire into the origin of documents submitted to its appreciation ; that its 
mission is merely to establish their authenticity or their sincerity; that, 
in fact, the letters in question are not denied by their authors: ' 

“ For these reasons the letters are declared admissible as evi¬ 
dence,” &c. 

It is refreshing to read by the side of this remarkable judgment 
so simple a passage as the following, which was contained in an 
English paper at the same time that the French judgment was given. 
It relates to a London police regulation concerning cabmen: 

“Now, we have no wish to palliate the bad conduct of a class 
who at least furnish amusing topics to contemporaries. By all 
means let the evils be remedied ; but let the remedy come within 
the limits of law. It will be an evil day for England when irre¬ 
sponsible legislation and police law, even for cabmen, are recognized 
and applauded by a certain public because in a given example it 
happens to be convenient to them. If the ordinary law is not suffi¬ 
cient, let it be reformed; but do not leave the making of penal laws 
to the police, and the execution of those laws to the correctional 
tribunal of the same authority.”—Spectator, April 2, 1853. 

2 They are generally called written constitutions; but it is evident 
that the essential distinction of constitutions, dei-ived from their 
origin, is not whether they are written or unwritten, which is inci¬ 
dental, but Avhether they are enacted or cumulative. The English 
constitution, that is the aggregate of those laws and rules which are 
considered of fundamental importance and essential in giving to the 
state and its government those features which characterize them, 
or those laws and institutions which give to England her peculiar 
political organic being, consist in cumulated usages and branches 
of the common law, in decisions of fundamental importance, in 
self-grown and in enacted institutions, in compacts, and in statutes 
embodying principles of political magnitude. From these we have 



AND SELF-GOVERNMENT. 


179 


be some authority which can pronounce whether the 
legislature itself has or has not transgressed it in the 
passing of some law, or whether a specific law con¬ 
flicts with the superior law, the constitution. If a 
separate body of men were established to pronounce 
upon the constitutionality of a law, nothing would be 
gained. It would be as much the 'creature of the 
constitution as the legislature, and might err as much 
as the latter. Quis custodet custodes ? Tribunes or 
ephori ? They are as apt to transgress their powers 
as other mortals. But there exists a body of men in 
all well-organized polities, who, in the regular course 
of business assigned to them, must decide upon clash¬ 
ing interests, and do so exclusively by the force of 
reason, according to law, without the power of 
armies, the weight of patronage or imposing pomp, 
and who, moreover, do not decide upon principles in 
the abstract, but upon practical cases which involve 
them—the middle-men between the pure philosophers 

extracted what has appeared important or applicable to our cir¬ 
cumstances, we have added, expanded and systemized, and then 
enacted this aggregate as a whole, calling it a constitution— 
enacted not by the legislature, which is a creature of this very con¬ 
stitution, but by the people. Whether the constitution is written, 
printed, carved in stone, or remembered only, as laws were of 
old, is not the distinctive feature. It is the positive enactment 
of the whole at one time, and by distinct authority, which marks 
the difference between the origin of our constitutions and those of 
England or ancient Rome. Although the term written constitution 
does not express the distinctive principle, it was nevertheless natu¬ 
ral that it should have been adopted, for it is analogous to the term 
lex scripts, by which the enacted or statute law is distinguished 
from the uneuacted, grown and cumulative common law. 



180 


ON CIVIL LIBEKTY 


and the pure men of government. These are the 
judges—courts of law. 

When laws conflict in actual cases, they must 
'decide which is the superior law and which must 
yield; and as we have seen that according to our 
principles every officer remains answerable for what 
he officially does, a citizen, believing that the law he 
enforces is incompatible with the superior law, the 
constitution, simply sues the officer before the proper 
court as having unlawfully aggrieved him in the 
particular case. The court, bound to do justice to 
every one, is bound also to decide this case as a 
simple case of conflicting laws. The court does not 
decide directly upon the doings of the legislature. 
It simply decides, for the case in hand, whether there 
actually are conflicting laws, and if so, which is the 
higher law that demands obedience, when both may 
not be obeyed at the same time. As, however, this 
decision becomes the leading decision for all future 
cases of the same import, until indeed proper and 
legitimate authority should reverse it, the question 
. of constitutionality is virtually decided, and it is 
decided in a natural, easy, legitimate and safe man¬ 
ner, according to the principle of the supremacy of 
the law and the independence of justice. It is one of 
the most interesting and important evolutions of the 
government of law, and one of the greatest protec¬ 
tions of the citizen. It may well be called a very 
jewel of Anglican liberty, one of the best fruits of 
our political civilization.^ 


® The ancient justicia of Arragon had the power of declaring 



AND SELF-GOVEKNMENT. 


181 


27. Of all the guarantees of liberty there is none 
more important, and none which in its ample and 
manifold development is more peculiarly Anglican, 
than the representative government. Every one 
who possesses a slight acquaintance with history, 
knows that a government by assembled estates was 
common to all nations arising out of the conquests 
of the Teutonic race; but the members of the es¬ 
tates were deputies or attorneys sent with specific 
powers of attorney to remedy specific grievances. 
They became nowhere, out of England and her colo¬ 
nies, general representatives—that is, representatives 
for the state at large and with the general power of 
legislation. This constitutes one of the most essen¬ 
tial differences between the deputative medieval es¬ 
tates, and the modern representative legislatures—a 
government prized by us as one of the highest po¬ 
litical blessings, and sneered at by the enemies of 
liberty on the continent, at this moment, as “ the un¬ 
wieldy parliamentary government.” I have endea¬ 
vored thoroughly to treat of this important differ¬ 
ence; of the fact that the representative is not a 
substitute for something which would be better were 
it practicable, but has its own substantive value; of 
political instruction and mandates to the representa¬ 
tives, and of the duties of the representative, in the 

laws unlawful or unconstitutional, as we call it, against the king 
and estates, but it was done without the trial of a specific case and 
specific persons. He was therefore simply in these cases above 
king and estates, that is, king himself, and it became necessary in 
course of time to suppress this feature. See Pol. Ethics, vol. ii. p. 
281 . 

VOL. I.—16 



182 


ON CIVIL LIBERTY 


Political Ethics, to. which I must necessarily refer the 
reader. 

With reference to the great subject of civil liberty, 
and as one of the main guarantees of freedom, the 
representative government has its value as an insti¬ 
tution by which public opinion organically passes 
over into public will, that is law; as one of the chief 
bars against absolutism of the executive on the one, 
and of the masses on the other hand; as the only 
contrivanee by which it is possible to induce at the 
same time an essentially popular government and 
the supremacy of the law, or the union of liberty 
and order; as an invaluable high school to teach the 
handling and the protection, and to instil the love, of 
liberty; as the organism by which the average jus¬ 
tice, on which all fair laws must be based, can be 
ascertained; as that sun which throws the rays of 
publicity on the whole government with a more 
penetrating light the more perfect it becomes; and 
as one of the most efficacious preventives of the 
* groAvth of centralization and a bureaucratie'* govern- 

^ The term bureaucracy is called by many bai’barous, nor has it, 
so far as I know, been introduced into dictionaries of any authority. 
Be it so; but while we have innumerable words, compounded of 
elements which belong to dilferent languages, a term for that dis¬ 
tinct idea which is designated by the word Bureaucracy has be¬ 
come indispensable in the progress of political science, because the 
thing which must be named has distinctly developed itself in the 
progress of centralization combined with writing. In spite, there¬ 
fore, of the want of texical authority, it is almost universally used; 
for necessity presses. I am under this necessity, and shall use it 
until a better and more acceptable term be proposed. Mandarinism 
would not be preferable. Mandarinism would express indeed a 
government by mandarins, by officials, but it would not designate 



AND SELF-GOVERNMENT. 


183 


ment—as that institution without which no clear di¬ 
vision of the functions of government can exist. 

Before we consider the most prominent points of 
a representative government, so far as it is a guarantee 
of liberty, it may be proper to revert to two subjects 
just mentioned. 

There was a time when, it seems, it was universally 
believed, and many persons believe still, that a repre¬ 
sentative government is indeed a very acceptable 
substitute, yet only a substitute, for a state, of things 
which would be the perfect one, but which it is phy¬ 
sically impossible to obtain at present, namely, the 
meeting of the people themselves, instead of an as¬ 
sembly of their representatives only. A secondary 
value only is thus allowed to the representative 
system. This is a grave error. Even were it phy¬ 
sically and locally possible to assemble the entire 
American people, and rule by the Athenian pebble 
or procheironia (their show of hands), we must still 
cling to the representative system as a substantive 
institution. The market government belongs to an¬ 
tiquity—the period of city-states—not to our period 
of national states; and national states have not only 
a meaning relating to physical extent' of country. 

It has been observed that the period of nationaliza¬ 
tion of tribes toward the close of the middle ages, is 


one cliaracteristie wliicli it is intended to point out by the term 
bureaucracy, namely, a government carried on, not only by a hie¬ 
rarchy of officials, but also by scribbling bureaus. All bureaucra¬ 
cies must be inandarinisms, I take it; but every mandarinisra need 
not be a bureaucracy. I observe that the French, from whom in¬ 
deed the term has been received, freely use it, even in their best 
writings. 



184 


ON CIVIL LIBERTY 


one of the most important in the progress of civiliza¬ 
tion and modern political development, as a period 
of medieval disintegration and division would be 
the necessary effect of denationalization. Eome 
perished of a political bankruptcy, because the 
ancient city-state was incompatible with an extensive 
empire. A representative government could alone 
have saved it; for its recollections and forms of 
liberty prevented a full blown centralization, the 
only other form which could have given to it a Eus- 
sian stability. Constantine indeed established a cen¬ 
tralized court government; but it was then too late. 
The decree had gone forth that the vessel should 
part amidst the breakers. 

The market democracy is irreconcilable with 
liberty as we love it. It is absolutism which exists 
wherever power, unmitigated, undivided and un¬ 
checked, is in the hands of any one or of any body of 
men. It is the opposite of liberty. The people, which 
means nothing more than an aggregate of men, 

■ require fundamental laws of restraint, as much as 
each component individual does. Unless we divide 
the power into two parts—into the electing power, 
which periodically appoints and recalls, and into the 
power of elected trustees appointed to legislate and, 
as trustees, are limited in their power, absolutism is 
unavoidable. Absolutism is the negation of pro¬ 
tection ; protection in its highest sense is an essential 
element of liberty.^ It is the trusteeship, that gives 

® To refer to books on such a subject is very difficult; for it 
almost comprehends the whole history of modern liberty. 

I have treated on many points connected with the representative 



AND SELF-GOVERNMENT. 


185 


so high a value to the representative government. 
When the Athenians, trying the unfortunate gene¬ 
rals after the battle of Argenusse, were reminded 
that they acted in direct contradiction to the laws, 
they exclaimed that they were the people; they made 
the laws, why should they not have the privilege of 
disregarding them ? 

Every one feels his responsibility far more dis- 
tinetly as trustee than otherwise. Let a man in an 
excited crowd be suddenly singled out, and made a 
member of a committee to refleet and resolve for 
that crowd, and he will feel the differenee.in an 
instant. How easy it would be to reeeive the most 
lavish and most dangerous money grants from an 
undivided and absolute multitude 1 Is it necessary 
to remind the reader that liberty has been lost quite 
as often from false gratitude toward a personally 
popular man as from any other reason? Trustees, 
carefully looking around them, and conscious that 
they have to give an account of themselves, are not 
so easily swayed by ravishing gratitude. The trus¬ 
teeship in the representative government is the only 
means yet discovered to temper the rashness of the 
democracy and overcome the obstinacy of monarchs. 

system in the Political Ethics. The reader will peruse with in¬ 
terest M. Guizot’s Histoire dcs Origines du Gouvernement Repre- 
sentatif en Europe, Paris, 1851. It is interesting to learn the 
views of a Frenchman of such celebrity on a subject of vital interest 
to us. Regarding the deputative principle, the Histoire de la 
Formation et des Progrcs du Tiers Etat by Augustin Thierry, 
Paris, 1853, is instructive. I am sorry that I have not been able 
to read Mr. George Harris’s True Theory of Representation in a 
State, London, 1852. 


16* 



186 


ON CIVIL LIBERTY 


How necessary for liberty a national® representa¬ 
tive government is—a representative system com¬ 
prehending the whole state, and throwing liberty 
over it broadcast—will appear at once, if we remem¬ 
ber that local self-government exists in a very high 
degree in many Asiatic countries, where, however, 
there is no union of these many insulated self- 
governments and no state self-government, and 
therefore no liberty. We shall also presently see 
that where there is only a national representative 
government without local self-government there is 
no liberty, as we understand it. 

Hor must we forget two facts, which furnish us 
with an important lesson on this subject. Wherever 
estates or other bodies have existed, no matter how 
great their privileges were or how zealously they 
defended their liberties, civil liberty has not been 
firmly established; on the contrary it has been lost 
in the course of time, unless the estates have become 
united into some national or state representative 
system. Where are the liberties of Arragon, and 
where is the freedom of the many Germanic polities ? 
It was one of the greatest political blessings of Eng¬ 
land that favorable circumstances promoted an early 
national fusion of the estates into two houses. On 
the other hand, we find that those governments which 
can no longer resist the demand of liberty by the 
people, yet are bent on yielding as little as possible, 
always have tried as long as possible to grant pro- 

6 I take here the term National in the sense of relating to an 
entire society spread over the territory of an extensive state; and 
as contradistinguished from what belongs to a city-state. 



^ND SELF-GOVERNMENT. 


187 


vincial estates only. Some monarchs of this century 
have shown a real horror of national representation, 
and would rather have periled their crown than 
granted it; yet some of these monarchs have readily 
granted an urban self-government of considerable 
extent. Their ministers and servants have frequently 
gone so far as to extol local self-government and to 
proclaim the idea that liberty consists far more in 
the “ administration” being left to the people, than in 
any general representative government. In doing 
so, they pointed to countries in which the latter, 
existing alone, had brought no real liberty. Asia, 
as was before stated, furnishes us with innumerable 
instances of local self-government, which are there 
neither a source nor a test of liberty.^ True liberty 
stands in need of both, and of a bona fide repre¬ 
sentative government largely and minutely carried 
out. 


A curious picture of Asiatic local self-government, without any 
liberty, has lately been given to the public, in lieutenant-colonel 
C. G. Dixon’s Sketch of Maiwara, giving a brief Account of the 
Origin and Habits of the Mairs, &c., London, 1851. 



188 


ON" CIVIL LIBERTY ' 


CIIAPTEK XVI. 

REPRESENTATIVE GOVERNMENT CONTINUED. BASIS 
OF PROPERTY. DIRECT AND INDIRECT ELECTIONS. 

28. The prominent points of a national representa¬ 
tive government, considered as a guarantee of liber¬ 
ty, consist in the representative principle, that is 
the basis of representation and the right of voting ‘ 
for the representative, in the election laws, and in 
the organization of the representative legislature, 
with its own protection and liberties. 

All that we can say Anglican liberty requires re¬ 
garding the principle of representation is that it be 
a broad or popular one. Universal suffrage cannot 
be said to be an Anglican principle, whatever the 
American view, of which we shall treat by and by, 
may be. The principle of a wide popular represent¬ 
ation, however, or an extensive right of voting, has 
constantly though slowly expanded in England, and 
continues to be expanding.^ 

The English, not allowing universal suffrage or 
indeed a representation based upon numbers alone, 
require some limit beyond which the right of voting 


* For the historic development of the English representative 
government it will hardly be necessary to refer the reader to ITal- 
lam’s History of the English Constitution. 



AND SELF-GOVEENMENT. 


189 


shall not go. This limit is, as a general rule, which 
has however its exceptions, indicated either by pro¬ 
perty or by a certain annual expense which usually 
indicates the amount of income over which man may 
dispose, namely house-rent. Hence it is often said 
that property is the basis of representation in Eng¬ 
land. This is not correct. Property, or the enjoy¬ 
ment of a certain revenue either from acquired pro¬ 
perty or from an industrial occupation, gives the right 
of voting, but it is not the basis of representation. 

When it is maintained in modern times that pro¬ 
perty ought to be the basis of representation, or it 
is asserted that the English constitution is founded on 
property, an inappropriate term is used, which car¬ 
ries along with it erroneous associations, in almost 
all discussions on this subject. When we say that 
population is the basis of representation, we mean 
indeed that one representative is chosen for a distinct 
number of represented citizens, and that therefore 
a large population should have more representatives 
than a small one; but when it is said that property 
is or ought to be the basis of representation, we 
mean in almost all cases nothing more than that a 
certain amount of property or revenue is required 
to entitle a man to vote. The Koman constitution 
ascribed to Servius Tullius was really founded upon 
property, because the six classes of citizens actually 
took a share in the government of the state in pro¬ 
portion to the property they held. Thus likewise 
there is a partial representation of property pre¬ 
scribed by the constitution of South Carolina, for 
the composition of the state senate, inasmuch as the 


190 


ON CIVIL LIBEETY 


small but wealthy divisions of the lower part of the 
state elect a number of senators disproportionately 
large compared to the number of senators sent from 
the upper districts of the state, which are very popu¬ 
lous and possessed of proportionately less property. 
This was at least the case when the constitution was 
adopted. 

What is really meant when it is said that a con¬ 
stitution ought to be founded on property, is this: 
that a minimum amount of property ought to be 
adopted as the last line beyond which no suftrage 
ought to be granted, but not that a capital of a mil¬ 
lion or the possession of a thousand acres of land 
ought to be entitled to a greater share in govern¬ 
ment than the possession of a few thousand dollars. 
It is meant that we seek for a criterion which will 
enable us to distinguish those who have a fair stake 
in the welfare of the state from those who have not. 
But here occurs at once the question: Is this crite¬ 
rion in our age any longer safe, just, and natural, 
which it may be supposed to have been in former 
ages? Are there not thousands of men without 
property who have quite as great a stake in the pub¬ 
lic welfare as those who may possess a house or 
enjoy a certain amount of revenue ? This criterion 
becomes an actual absurdity when by property, 
landed property only is understood. It was indeed 
in the middle ages almost the exclusive property of 
lasting and extensive value; but nothing has since 
changed its character more than property itself. 
This whole question is one of the vastest extent, and 
emphatically belongs to the science of politics and 


AND SELF-GOVERNMENT. 


191 


real statesmanship. In regard to the subjeet imme¬ 
diately in hand, we have only to repeat that an ex¬ 
tensive basis of representation is doubtless a charac- 
teristie element of Anglican liberty. 

29. As important as the basis of representation— 
indeed, in many cases more important—is the ques¬ 
tion whether there shall be direct elections by the 
people, or whether there shall be double elections; 
that is to say, elections of electors by the constituents, 
which electors elect the representative. It may be 
safely asserted that the Anglican people are distinctly 
in favor of simple elections. Elections by electing’ 
middle men deprive the representation of its direct¬ 
ness in responsibility and temper ; the first electors 
love their interest, because they do not know what 
their action may end in; no distinct candidates can 
be before the constituents, and be canvassed by 
them, and, inasmuch as the number of electors is a 
small one, intrigue is made easy. 

The fact that a double or mediate election foils 
in a great degree the very object of a representative 
government, is so well known by the enemies of 
liberty, that despotic governments, unable to hold 
their absolute power any longer, have frequently 
struggled hard to establish universal suffrage with 
double election. An intention to deceive, or a want 
of acquaintance with the operation of the principle 
must explain the measure. I believe that neither 
American nor Englishman would think the franchise 
worth having were double elections introduced, and 
so decidedly is the simple election ingrained in the 
Anglican character, that in the only notable case in 


192 


ON CIVIL LIBERTY 


whicli a mediate election is prescribed in America, 
namely tbe election of the president of the United 
States, tbe whole lias naturally and of itself become 
a direct election. Tbe constitution is obeyed, and 
electors are elected, but it is well known for wbicb 
candidate tbe elector is going to vote, before tbe 
people elect bim. There is but one case of old date 
in wbicb an elector, elected to vote for a certain 
candidate for tbe presidency, voted for another, and 
his political character was gone for life. 

It is curious to observe by what circuitous ways 
and multiplied elections it was frequently attempted 
in the middle ages, to insure an impartial or pure 
election. Tbe master of tbe knights of Malta was 
elected by no less than seventeen consecutive 
elections of electors, each connected with oaths;* 
and tbe doge of Yenice was elected by nine different 
acts, namely five elections alternating with four acts 
of drawing lots,^ with tbe addition of collateral 
votings. 

80. Tbe representative principle farther requires 
that tbe management of tbe elections be in the 
bands of tbe voters, or of a popular character; that 
especially tbe government do not interfere with 
them, either in tbe election bureau itself, or by in¬ 
decently proposing and urging certain candidates; 
that tbe bouse for wbicb tbe candidates are elected 
be tbe sole judge of tbe validity of tbe election, and 


2 VertoTs History of the Knights of Malta, folio edition, London, 
1728; vol. ii. Old and New Statutes. 

3 Daru, Histoire de Venise, Paris, 1821, vol. i. 



AND SELF-GOVERNMENT. 


193 


that the opening of the poll do not depend upon the 
executive, which by mere omission might prevent 
the entire election in order to exclude a distasteful 
citizen from the house. 

The beginning of an election, the appointment of 
managers, the protection of the minority in this mat¬ 
ter, and the conscientious counting of votes, where 
the ballot exists, are always matters of much interest 
and of great practical difficulty, to all those who 
have not traditionally learned it. Collections of 
election laws are therefore very instructive; and the 
labor of giving birth to an election with nations un¬ 
accustomed to liberty is very great. Mr. Dupont 
gives some instructive and amusing anecdotes, re¬ 
lating to the first French elections, in his Memoirs of 
Mirabeau. 

The English law is that all the military must leave 
the place where an election is going on, and can only 
enter it when called in by the town authorities or the 
justices of the peace, in case of riot. 

The British house of commons is the sole judge of 
the validity of elections, and the same is declared 
for the house of representatives by the American 
constitution.** 

One of the gravest charges against the duke of 
Polignac and his fellow members of the cabinet, 

^ A full statement of all the laws relating to these guarantees in 
England will be found in Stephens’s De Lolme, Rise and Progress 
of the British Constitution; and Story’s Commentaries on the Con¬ 
stitution of the United States gives our constitutional law on these 
subjects. 

VOL. I.— 17 



194 


ON CIVIL LIBERTY 


wlien they were tried for their lives after the revolu¬ 
tion of 1830, was that they had allowed or induced 
Charles the Tenth to influence certain electors, by 
letter, to elect government candidates; while the 
government under the late so-called republic openly 
supported certain persons as government candidates, 
and bishops wrote then and have since sent solemn 
pastoral letters, calling on their flocks to elect men 
of certain political color. It is wholly indifferent 
to decide here whether peculiar circumstances made 
this interference necessary. I simply maintain that 
it is not liberty. 

81. Kepresentative legislatures cannot be truly the 
organisms through which public opinion passes into 
public will, nor can they be really considered repre¬ 
sentative bodies, if the members, or at least the 
members of the popular branch, be not elected for a 
moderately short period only; if the legislature does 
not sit frequently; if the elections for the popular 
branch are not for an entire renewal of the house; 
and if the member is made answerable for what he 
says in the house, to any one or any power besides 
the house to which he belongs. 

What a moderately short period, or the fre¬ 
quency of sessions means, cannot, as a matter of 
course, be absolutely stated. Fairness and practice, 
as well as the character of the times, must necessarily 
settle these points. It was enacted under Charles 
the Second, the unworthy king under whom par¬ 
liament established many of the best supports of 
liberty, that new parliaments should be held at least 
once in three years, and the commons be elected for 


AND SELF-GOVERNMENT. 


195 


that time. In 1716, sir Robert Walpole, the whig 
premier, carried the septennial bil], forced to do it 
by the intrigues of the tories, who were for bringing 
back the Stuarts. This law has ever since prevailed, 
but even Pitt called it, in 1783, one of the greatest 
defects in the system of popular representation. 
Chatham, his father, had expressed himself against 
it^ before him, and it would really seem that England 
will return, at no distant period, to a shorter period 
of parliaments.® 

When count Villele, in 1824, was desirous of di¬ 
minishing the liberal spirit of the French charter, he 
introduced and carried a septennial bill, which was, 
however, abolished in 1830 by the “July Revolu¬ 
tion.” Parliaments for too short a period would 
lead to a discontinuous action of government, and 
unsettle instead of settling; hence, they would be as 
much against liberty as too long ones. In America, 
two years has become a pretty generally adopted 
time for the duration of legislatures. It is a re¬ 
markable fact that the people in America feel so per¬ 
fectly safe from attacks of the executive that, in 
several states, where the constitutions have been re-, 
vised, a fundamental law has been enacted that the 
legislature shall not meet more often than every two 
years. This is to avoid expense and over-legislation. 
The general principle remains true that “parliaments 


5 Volume 14, page 174, of Correspondence of William Pitt, Earl 
of Chatham. 

® I have given a sufficiently long account of the Septennial Bill, 
under this head, in the Encyclopaedia Americana. 



196 


ON CIVIL LIBERTY 


ouglit to be held frequently,” as the British Declara¬ 
tion of Eights and Liberties enacts it. The consti¬ 
tution of the United States makes the meeting and 
dissolution of congress entirely independent of the 
executive, and enacts that congress shall meet at 
least once in every year, on the first Monday of De¬ 
cember, and that the house of representatives shall 
be entirely renewed every second year. 

As to the irresponsibility of members for their 
remarks in parliament, the declaration of rights 
enacts “ that the freedom of speech, and debates or 
proceedings in parliament, ought not to be im¬ 
peached or questioned in any court or place out of 
parliament.” This was adopted by the framers of 
our constitution, in the words that “ for any speech 
or debate in either house, they (senators and repre¬ 
sentatives) shall not be questioned in any other 
place.” 

32. A farther and peculiar protection is granted 
to the members of the legislature, both in the United 
States and in England, by protecting them against 
arrest during session, except for certain specified 
crimes. The English house of commons “for the 
first time took upon themselves to avenge their own 
injury, in 1543,”^ when they ordered George Ferrers, 
a burgess who had been arrested in going to parlia¬ 
ment, to be released, and carried their point. “ But 
the first legislative recognition of the privilege was 
under James the First.”® The constitution of the 


1 Hallam, Hist, of English Constitution, 5th edit. vol. i. p. 268. 
® Ibidem, vol. i. p. 303. 



AND SELF-GOVERNMENT. 


197 


United States enacts that senators and representa¬ 
tives shall “ in all cases, except treason, felony, and 
breach of the peace, be privileged from arrest during 
their attendance at the session of their respective 
houses, and in going to and returning from the 
same.” 

33. It is farther necessary that every member pos¬ 
sess the initiative, or right to propose any measure 
or resolution. This is universally acknowledged and 
established where Anglican liberty exists, not by 
enactment, but by absence of prohibition, and as 
arising out of the character of a member of the legis¬ 
lature itself. In most countries, not under the aegis 
of Anglican liberty, this right of the initiative has 
been denied the members, and government, that is 
the executive, has reserved it to itself. So has the 
so-called legislative corps of the present French em¬ 
pire no initiative. It has indeed not even the privi¬ 
lege of amendment; it has not even the right of 
voting on the ministerial estimates, except on the 
whole estimate of one ministry at once.® In some 
countries, as in France under the charter of the July 
revolution, the initiative is vested in the houses and 
in government; that is to say, the government, as 
government, can propose a measure through a minis¬ 
ter, who is not a member of the house. In England 
no bill can be proposed by the executive as such, 
but as every cabinet minister is either a peer or must 
contrive to be elected into the commons, the ministers 

® Why, indeed, it is called legislative corps does not appear. 
Legislative corpse would be intelligible. 

17* 



198 


ON CIVIL LIBERTY 


have of course the right of the initiative as members 
of their respective houses. The constitution of the 
United States prohibits any officer of the United 
States from being a member of either house, and the 
law does not allow the members of the administra¬ 
tion a seat and the right to speak in the houses, as 
some think that a law to that effect ought to be 
passed. The representatives of our territories are 
in this position; they have a seat in the house of 
representatives, and may speak, but have no vote. 
A minister had the right to speak in either house, 
under the former French charters, in his capacity of 
cabinet minister, whether he was a member of the 
house or not. Whenever the executive of the United 
States is desirous to have a law passed, the bill must 
be proposed by some friend of the administration 
who is a member of one or the other house. 

It has been mentioned already that the initiative 
of money bills belongs exclusively to the popular 
branch of the legislature, both in the United States 
and in England, by the constitution in the one, and 
by ancient usage, which has become a fundamental 
principle, in the other. 


AND SELF-GOVERNMENT. 


199 


CHAPTEK XVII. 

PARLIAMENTARY LAW AND USAGE. THE SPEAKER. 

TWO HOUSES. THE VETO. 

84. It is not only necessary that the legislature 
be the sole judge of the right each member may 
have to his seat, but that the whole internal manage¬ 
ment and the rules of proceeding with the business 
belong to itself. It is indispensable that the legis¬ 
lature possess that power and those privileges which 
are necessary to protect itself and its own dignity, 
taking care however that this power may not, in 
turn, become an aggressive one. 

In this respect are peculiarly important the pre¬ 
siding officer of the popular branch or speaker, the 
parliamentary law, and the rules of the houses. 

The speaker of the English commons was in 
former times very dependent on the crown. Since 
the revolution of 1688, his election may be said to 
have become wholly independent. It is true that 
the form of obtaining the consent of the monarch 
is still gone through, but it is a form only, and a 
change of the administration would unquestionably 
take place, were the ministers to advise the crown 
to withhold its consent. 


200 


ON CIVIL LIBERTY 


Were the refusal insisted on, disturbances would 
doubtless follow, which would end in a positive de¬ 
claration and distinct acknowledgment on all hands, 
that the choice of the speaker “ belongs, and of right 
ought to belong” to the house of commons. There 
is no danger on that score in England, so long as a 
parliamentary government exists there at all. The 
growth of the commons’ independence in this respect 
is as interesting a study as it is historically to trace 
step by step any other expanding branch of British 
liberty. 

The constitution of the United States says that 
“the house of representatives shall choose their 
speaker and other officers,” and so chosen, he is 
speaker, without any other sanction. 

The charter granted by Louis the Eighteenth, of 
France, prescribed that “ the president of the cham¬ 
ber of deputies is nominated by the king from a list 
of five members presented by the chamber.” This 
was altered by the revolution of 1830, and the 
charter then adopted decreed that “ the president of 
the chamber of deputies is to be elected by the 
chamber itself at the opening of each session.” 
It need not be added that, according to the “con¬ 
stitution of the empire,” the emperor of the French 
simply appoints the president of the “legislative 
corps.” In all the states of the Union the speakers 
are within the exclusive appointment of the houses. 
In the British colonial legislatures, the speaker must 
be confirmed by the governor, but, as was observed 
of the speaker of the commons, if consent be refused 
it would be a case of disagreement between the 


AND SELF-GOVEENMENT. 


201 


administration and the legislature, which must be 
remedied either by a new administration or a new 
house—that is new elections. 

The presiding officer of the upper house is not 
made thus dependent upon it. In England, the 
chief officer of the law, the lord chancellor or keeper 
of the seals, ^ presides over the house of peers. There 
seems to be a growing desire in England wholly to 
separate the lord chancellor from the cabinet and 
politics. At present he is always a member of the 
administration, and, of course, leaves his office when 
the cabinet to which he belongs goes out. It will 
be an interesting subject to determine who shall pre¬ 
side over the lords, if the change thus desired by 
many should take place. 

The United States senate is presided over by the 
vice-president of the United States, who is elected by 


* A keeper of the seals, whom usage does not require to be apeer, 
is now appointed as the chief officer of the law, only when for some 
reason or other no lord chancellor is appointed. The keeper of 
the seals nevertheless presides in the house of lords, or “sits on 
the woolsack.” The chancellor is now always made a peer if he is 
not already a member of the house of lords, and he is always a 
member of the cabinet. This mixture of a judicial and political 
character is inadmissible according to American views; yet it ought 
to be remembered as an honorable fact, that no complaint of par¬ 
tiality has been made in modern times against any lord chancellor 
in his judicial capacity, although he is so deeply mixed up with 
politics. Lord Eldon was probably as uncompromising, and, per¬ 
haps, as bigoted a politician as has ever been connected with public 
affairs, but I am not aware that any suspicion has existed on 
this ground against his judicial impartiality. There is at present 
a traditional fund of uncompromising judicial rectitude in England 
which has never been so great at any other period of her own his¬ 
tory, or excelled in any other country. 



202 


ON CIVIL LIBERTY 


tlie Union at large, as the president is. It must be 
observed, however, that neither the chancellor on 
the woolsack, nor the vice-president of the United 
States, as president of the senate, exercises any influ¬ 
ence over their respective legislative bodies, that can 
in any degree be compared to that of the speakers 
over their houses. The American senate and the 
British house of lords allow but very little power 
in regulating and appointing, to the presiding oflicer, 
who interferes only when called upon to do so.* 

The power of the houses of parliament over per¬ 
sons that are not members, or the privileges of par¬ 
liament, or of either house, so far as they affect the 
liberty of individuals and the support of their own 
power, constitute what is called parliamentary law 
—an important branch of the common law. Like 
all common law, it consists in usage and decisions; 
there are doubtful points as well as many firmly 
settled ones. It must be learned from works such 
as Hatsell’s Precedents, &c., Townsend’s History of 
the House of Commons, and others. 


2 This diiference in the position of the presiding officers appears 
among other things from the fact that the members of the house 
of lords address: “My lords,” and not the chancellor, while usage 
and positive rules demand that the member of the other house 
who wishes to speak shall address “Mr. Speaker,” and receive 
“the floor” from him. The chancellor would only give the floor if 
appealed to in case of doubt. In the United States senate, the 
president of the senate is, indeed, directly addressed, although 
occasionally “senators” have been addressed in the course of a 
speech. That body, however, appoints its committees, and leaves 
little influence to the presiding officer, who, it will be remembered, 
is not a member of the senate, and has a casting vote only. 



AND SELF-GOVERNMENT. 


203 


As a general remark it may be stated that, with 
the rise of liberty in England, the jealousy of the 
house of commons also rose, and continued during 
the period of its struggle with the executive; and 
that, as the power of the house has become con¬ 
firmed and acknowledged, the jealousy of the house 
has naturally abated. I very much doubt whether at 
any earlier period the committee of privileges would 
have made the same declaration which it made after 
lord Cochrane, in 1815, had been arrested by the 
marshal of the king’s bench, while sitting on the 
privy councillors’ bench in the house of commons, 
prayers not yet having been read. The committee 
declared that “the privileges of parliament did not 
appear to have been violated so as to call for the 
interposition of the house.”^ 

The two American houses naturally claim the 
“power of sending for persons and papers and of. 
examining upon oath,” and they have also exercised 
the power of punishing disturbances of their debates 
by intruders, and libellers of members or whole houses. 
But no power to do so is explicitly conferred by the 
constitution of the United States.'* 


3 I would refer the general reader, on this and kindred subjects, 
to the article Parliament, in the Political Dictionary, Lond. 1846. 

‘‘ This is not the place for discussing the doubts which some have 
entertained regarding the power of the houses of congress to do 
that which is possessed by every court of justice, though the lowest, 
namely to arrest and punish disturbers. The doubt is simply on 
the ground that it has not been conferred. But there are certain 
rights which flow directly from the existence of a thing itself, and 
some that are the necessary consequence of action and life, and 
without which neither can manifest itself. A legislative body 



204 


ON CIVIL LIBERTY 


Of far greater importance is the body of the rules 
of procedure and that usage which has gradually 
grown up as a part of common law, by which the 
dispatch of parliamentary business and its protection 
against impassioned hurry are secured, and by which 
the order and freedom of debate, fairness, and an 
organic gestation of the laws are intended to be ob¬ 
tained. The development of parliamentary practice, 
or rules of proceeding and debate, such as it has 
been developed by England, independently of the 
executive, and like the rest of the common law been 
carried over to our soil, forms a most essential part 
of our Anglican constitutional, parliamentary liberty. 
This practice, as we will call it for brevity’s sake, is 
not only of the highest importance for legislatures 
themselves, but serves as an element of freedom all 
over the country, in every meeting, small or large, 
primary or not. It is an important guarantee of 
liberty, because it serves like the well worn and 
banked bed of a river, which receives the waters 
that without it would either lose their force and 


without the power of sending for persons to be examined by com¬ 
mittees, would be forced to legislate, in many cases, in the dark. It 
is true that legislative bodies have become tyrannical; but it must 
not be forgotten that wherever, in the wide range of history, any 
struggle for liberty has taken place, we find that a struggle to 
establish the habeas corpus principle has always accompanied it, 
and that this struggle for securing personal liberty is always against 
the executive. I do not remember a single case of an established 
and separate guarantee of personal liberty against parliamentary 
violence. 

The reader is referred to Mr. Justice Story’s Comm, on the 
Const. U. S. chap, xii., and to Chancellor Kent’s Commentaries. 



AND SELF-GOVERNMENT. 


205 


use, bj spreading over plains, or become ruinous by 
their impetuosity when meeting with obstacles. 
Every other nation of antiquity and modern times 
has severely sufiered from not having a parliamentary 
practice such as the Anglican tribe possesses, and no 
one familiar with history and the many attempts to 
establish liberty on the continent of Europe or in 
South America, can help observing how essentially 
important that practice is to us, and how it serves to 
ease liberty, if we may say so. 

It is not a French “ reglement,” prescribed by the 
executive with but little room for self-action; nor 
does it permit legislative disorder or internal anarchy. 
It has been often observed that the want of parlia¬ 
mentary practice created infinite mischief in the first 
French revolution. Dumont observes that there was 
not even always a distinct proposition before the 
convention; and the stormiest sessions, which fre¬ 
quently ended by the worst decrees—the decres 
d'^declamation — were those in which there were 
speeches and harangues without propositions. Sir 
Samuel Eomilly^ says: “ If one single rule had been 
adopted, namely that every motion should be reduced 
into writing in the form of a proposition before it 
was put from the chair, instead of proceeding, as was 
their constant course, by first resolving the principle 
as they called it (ddcreter le principe), and leaving 
the drawing up of what they had so resolved (or, as 
they called it, la redaction) for a subsequent operation, 

5 He was himself of unmixed French descent, as lord Brougham 
observes, although his family had resided for generations in England. 

VOL. I.— 18 



206 


ON CIVIL LIBERTY 


it is astonisliing how great an influence it would have 
had in their debates and on their measures.”® 

The great importance of the subject and the gene¬ 
ral superiority of the English parliamentary practice 
have been acknowledged by French writers, practi¬ 
cally acquainted with the subject, and especially in a 
work the full title of which I shall give in a note, 
because it shows its interesting contents.^ 

Foreigners frequently express their surprise at 
the ease with which in our country meetings, socie¬ 
ties, bodies, communities, and even territories® self- 
constitute and organize themselves, and transact 
business without violence, and without any force in 
the hands of the majority to coerce the minority, or 
in the hands of the minority to protect itself against 

® Memoirs of the Life of Sir Samuel Romilly, &c. 2d edit. vol. i. 

p. 103. 

A Treatise on the Formation of Laws (Traite de la Confection 
des Lois), or an Inquiry into the Rules (R^glements) of the French 
Legislative Assemblies, compared with the Parliamentary Forms of 
England, the United States, of Belgium, Spain, Switzerland, &c., 
by Ph. Vallette, Advocate, &c., and Secretary of the Presidency of 
the Chamber of Deputies, and by Benat Saint-Martin, Advocate, 
&c., 2d edit. Paris, 1839; with the words of Mr. Dupin, who long 
presided over the chamber, as motto: “The excellence of laws de¬ 
pends especially upon the care taken with the elaboration of the 
bills. The drawing up of laws constitutes a large share of their 
efficiency.” 

® As a striking instance may be mentioned the whole procedure 
of the people of Oregon when congress omitted to organize the 
territory, and ultimately “Organic Laws” were adopted “until 
such time as the United States of America extend their jurisdic¬ 
tion over us.” They were printed by the senate. May 21, 1846, 
and form a document of great interest to the political philosopher 
in more than one respect. 



AND SELF-GOVERNMENT. 


207 


tlie majority. One of the chief reasons of this phe¬ 
nomenon is the universal familiarity of our people 
with parliamentary practice, which may be observed 
on board of any steamboat where a number of per¬ 
sons, entire strangers to one another, proceed to pass 
some resolution or other, and which they learn even 
as children. There are few schools the members of 
which have not formed some debating society, in 
which parliamentary forms are strictly observed, and 
in which the rigorously enforced fine impresses upon 
the boy of ten or eleven years the rules which the 
man of forty follows as naturally as he bows to an 
acquaintance.® 

The U. S. Constitution says that “ each house may 
determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the con¬ 
currence of two-thirds, expel a member.” If, how¬ 
ever, the parliamentary practice had not already 
been spread all over the colonies, like the common 
law itself, this power, justly and necessarily conferred 
on each house, would have been of comparatively 
little advantage. Parliamentary practice—that ars 
ohstetrix animarum^ as Mr. Bentham calls it, but it 
ought to be called the obstetric art of united bodies 
of men, for in this lies the difficulty—is not a thing 
to be invented nor to be decreed, but must be de- 
veloped.‘° 

® An excellent book of its kind is the small work of judge L, S. 
Cushing, Rules of Proceeding and Debate in Deliberative Assem¬ 
blies, Boston, Mass. It has gone through many editions. The 
author is engaged in a large work on parliamentary law, and we 
hope he will be able to give it to the public at no distant period. 

Mr. Jeremy Bentham’s Tactique des Assemblies Ligislative, 



208 


ON CIVIL LIBEKTY 


It is not only a guarantee of the free share of 
every representative in the legislation of his coun¬ 
try, but it is also, as has been indicated, a guarantee 
for the people that its legislature remain in its proper 
bounds, and that laws be not decreed as the effects 
of mere impulse and passion. 

It is a psychological fact that whatever excites a 
number of separate individuals will excite them still 
more when brought together, by mutual countenance 
and that psychical reduplication which, for bad or 
good, has a powerful effect wherever individuals 
of the same mind or acting under the same impulse 
come in close contact. Parliamentary practice, as we 
possess it, is as efficient a means to calm and to regu¬ 
late these excitements, as the laws of evidence and 
the procedure of’courts are in tempering exciting 
trials and impassioned pleadings, and in preventing 
the mischief they would otherwise produce. 


edited by E. Duraont, Geneva, 1816, is no pure invention, and could 
have been written by an Englishman or American only. 

See also Mr. Jefferson’s Manual of Parliamentary Practice for 
the use of the Senate of the United States. 

There is a very curious book. Parliamentary Logic, &c., by Right 
lion. W. Gerard Hamilton (called in his time single-speech Ham¬ 
ilton), with considerations on the Corn Laws by Dr. Samuel John¬ 
son, London, 1808. The copy which I own belonged to Dr. Thomas 
Cooper. That distinguished man has written the following remark 
on the fly-leaf; “This book contains the theory of deception in 
parliamentary debate ; how to get the better of your opponent, and 
how to make the worse appear the better reason. It is the well 

written work of a hackneyed politician.The counterpart to 

it is the admirable tract of Mr. Jeremy Bcntham on Parliamentary 
Logic, the book of Fallacies. No politician ought to be ignorant of 
the one book or the other. They are loell worth (not perusing, but) 
studying.” • <<T. C.” 




AND SELF-GOVERNMENT. 


209 


These remarks may fitly conclude with the words 
of judge Story, which he uttered when he left the 
speaker’s chair of the Massachusetts house of repre¬ 
sentatives, to take his seat on the bench of the 
supreme court of the United States. They ought to 
be remembered by every one on both sides of the At¬ 
lantic that prizes practical and practicable liberty: 

“ Cheered, indeed, by your kindness, I have been 
able, in controversies, marked with peculiar political 
zeal, to appreciate the excellence of those established 
rules which invite liberal discussions, but define the 
boundary of right, and check the intemperance of 
debate. I have learned that the rigid enforcement 
of these rules, while it enables the majority to mature 
their measures with wisdom and dignity, is the only 
barrier of the rights of the minority against the en¬ 
croachments of power and ambition. If anything 
can restrain the impetuosity of triumph, or the vehe¬ 
mence of opposition—if anything can awaken the 
glow of oratory, and the spirit of virtue—if anything 
can preserve the courtesy of generous minds amidst 
the rivalries and jealousies of contending parties, it 
will be found in the protection with which these 
rules encircle and shield every member of the legis¬ 
lative body. Permit me, therefore, with the sincerity 
of a parting friend, earnestly to recommend to your 
attention a steady adherence to these venerable 
usages.”" 

35. If parliamentary practice is a guarantee of 

" Life and Letters of Joseph Story, Boston, Mass. 1851, vol. i. 
p. 203. 


18 * 



210 


ON CIVIL LIBERTY 


liberty by excluding, in a high degree, impassioned 
legislation, and aiding in embodying in the law the 
collective mind of the legislature, the principle of 
two houses, or the bicameral system, as Mr. Ben- 
tham has called it, is another and no less efficient 
guarantee. 

Practical knowledge alone can show the whole 
advantage of this Anglican principle, according to 
which we equally discard the idea of three and four 
estates and of one house only. Both are equally 
and essentially un-Anglican. Although, however, 
practice alone can show the whole advantage that 
may be derived from the system of two houses, it 
must be, nevertheless, a striking fact to every in¬ 
quirer in distant countries, that not only has the 
system of two houses historically developed itself in 
England, but it has been adopted by the United 
States, and all the thirty-one states as well as the 
six now existing territories, and by all the British 
colonies, where local legislatures exist. We may 
mention even the African state of Liberia. The 
bicameral system accompanies the Anglican race 
like the common law,*^ and everywhere it succeeds; 
while no one attempt at introducing the unicameral 
system, in larger countries, has so far succeeded. 
France, Spain, Naples, Portugal—in all these coun- 


>2 No instance illustrating this fact is perhaps more striking than 
the meeting of settlers in Oregon Territory, when congress had 
neglected to provide for them, as has been mentioned in a previous 
note. The people met for the purpose of establishing some legis¬ 
lature for themselves, and at once adopted the principle of two 
houses. It is to us as natural as the jury. 



AND SELF-GOVERNMENT. 


211 


tries it has been tried, and everywhere it has failed. 
The idea of one honse flows from that of the unity 
of power, so popular in France. The bicameral 
system is called by the advocates of democratic unity 
of power an aristocratic institution. This is an utter 
mistake. In reality it is a truly popular principle 
to insist on the protection of a legislature divided 
into two houses; and as to the historical view of the 
question, it is sufficient to state that two houses have 
been insisted upon and rejected by all parties, aris¬ 
tocratic and popular, according to the circumstances 
of the times. In this the principle resembles the in¬ 
struction of the representative by his constituents. 
This too has been insisted on and rejected by all 
parties. 

A few attempts were made in our earlier times to 
establish a single house, for instance in Pennsylvania, 
but the practical and sober sense of the Anglican 
people soon led them back to the two houses. Mr. 
de Lamartine pronounced the true reason why we 
ought to hold fast to the bicameral system, although 
he spoke against it. When in the last French 
constituent assembly Mr. Odillon Barrot had urged 
with ability the adoption of two houses, Mr. de 
Lamartine replied that the great principle of unity 
(he meant, no doubt, of centralization) required the 
establishment of one house, and that, unless the legis- 


It was at the period when Dr. Franklin asked why people would 
put horses not only before but also behind the wagon, pulling in 
opposite directions ? The true answer would have been, that when¬ 
ever a vehicle is pulled down an inclined plane we actually do employ 
an impeding force to prevent its being dashed to pieces. 



212 


ON CIVIL LIBERTY 


lature was vested in one house alone, it would be too 
difficult to make it pass over from a simple legislature 
to an assembly with dictatorial power. This is pre¬ 
cisely the danger to be avoided.Parliamentary 
practice and the two-house system are subjects of 
such magnitude that it is impossible here, where 

*■* The speech was delivered on the 27th September, 1848. Mr. 
de Lamartine speaks of a division of the sovereignty into two parts, 
by two houses! Poor sovereignty! What strange things have 
been imagined under that word! If the reader can find access 
to that speech, I advise him to peruse it, for it is curious from 
beginning to end, especially as coming from one who for a time was 
one of the rulers of France. His exact words are these. Speak¬ 
ing of domestic dangers, he says; “To such a danger you must 
not think of opposing two or three powers. That which ought to 
oppose it is a direct dictatorship, uniting within its hand all the 
powers of the state.” He adds more of the kind, but this extract 
will suffice. 

Mr. Lamartine committed another grave error. He said that two 
houses in the United States were natural, because we are a con¬ 
federacy, and the senate was established to represent the states as 
such. But he seems not to have been aware that all our states, in 
their unitary character, have established the same system, and that 
it is as natural to the men on the shores of the Pacific as to those 
in Maine, or to the settlers on the Swan River. 

I ought in justice to add, however, that in 1860 ^Mr. de Lamar¬ 
tine said, in his Counsellor of the People, that he was now for two 
houses, and that he had been for one house in 1848 because he 
wanted a dictatorial power; and, added he. La dictature ne se 
divise pas. But how can a dictatorship be called undivided, when 
it belongs to a house composed of ei^ht hundred members ? And 
must not, in the nature of things, a division of execution always 
take place ? It is surprising that something temporarily desired for 
a dictatorship should have been insisted upon by Mr. Lamartine 
with so much vehemence as an integral part of the fundamental 
law, or was peradventure the constitution of 1848 intended not to 
last? 



AND SELF-GOVEKNMENT. 


213 


they are mentioned as guarantees, to enter upon 
details; but I cannot dismiss them without recom¬ 
mending them to the serious and repeated attention 
of every one who may have looked upon them as 
accidents rather than essentials. 

To have a measure discussed entirely de novo by 
a different set of men, with equal powers, and com¬ 
bined upon a different basis—this, and the three 
readings, with notice and leave of bringing in, and- 
the going into committee before the third reading, 
have a wonderful effect in sifting, moderating, disco¬ 
vering, and in enlightening the country. .Take the 
history of any great act of parliament or congress, 
and test what has been asserted. This effect of two 
houses, and the rules of procedure just mentioned, 
are alone like so many pillars to the fabric of liberty. 

The question has indeed been asked, why should 
there be two chambers ? What philosophical prin¬ 
ciple is there enshrined in this number? All we 
would answer is, that it has been found that more 
than one house is necessary, and more than two is 
too many. Three and even four houses belong to 
the mediaeval estates and to the deputative, not to the 
modern national representative system. The mischief 
of three houses is as great as that of three parties. 
The weakest becomes the deciding one by a casting 
vote. And one house only belongs to centralization. 
It is incompatible with a government of a co-opera¬ 
tive character, which we hold to be the government 
of freedom. 

I cannot agree with the opinion expressed by lord 
Brougham in his work on Political Philosophy, that 


214 


ON CIVIL LIBERTY 


it is essentially necessary that the composition of the 
two houses should be based upon entirely different 
principles, meaning that the one ought not to be 
elective, and that it ought to represent entirely dif¬ 
ferent interests. A thorough discussion of this sub¬ 
ject belongs to the province of politics proper, but I 
ask the reader’s indulgence for a few moments. 

If the two houses were elected for the same period 
and by the same electors, they would amount in 
practice to little more than two committees of the 
same house; but we want two bona fide different 
houses, representing the impulse as well as the con¬ 
tinuity, the progress and the conservatism, the on¬ 
ward zeal and the retentive element, which must 
ever form integral elements of all civilization. One 
house, therefore, ought to be large; the other, com¬ 
paratively small and elected or appointed for a longer 
time. Now as to the right of sitting in the smaller 
or upper house, of longer duration, there are different 
modes of bestowing it. It may be hereditary, as the 
English peers proper are hereditary; or the members 
may have seats for life and in their personal capa¬ 
city, as the French peers had under the charter. 
This is probably the worst of all these methods. It 
gives great power to the crown and keeps the house 
of peers in a state of submission, which hereditary 
peers do not know. Or, again, the members may be 
elected for life by a class, as Scottish representative 
peers are elected by the Scottish nobility for the 
British house of peers; or the members may be 
similarly elected for one parliament alone, as the 
Irish peers are that sit in parliament; or the people 


AND SELF-GOVERNMENT. 


215 


may elect senators for life, or for a shorter time, 
as the senators of Belgium, and all the senators 
in our states, are; or, lastly, the members of the 
house we are speaking of may be elected, not by 
the people in their primary capacity, but by differ¬ 
ent bodies, such as our senators are. The senators 
of the United States are elected by the states, as 
states, consequently an equal number of representing 
senators is given to each state irrespective of its size 
or population. 

It would be very difficult to pronounce the one 
or the other principle absolutely the best, without 
reference to circumstances, and we are sure that lord 
Brougham would be the last man that would main¬ 
tain the absolute necessity of having a hereditary 
peerage wherever two houses exist. As to the 
classes, or interests, however, which ought to be re¬ 
presented, I would only state that the idea belongs 
to the middle ages, and, if adopted, would lead at 
once to several estates again. It is hostile to the idea 
of two houses. Why represent the interests of the 
nation in two houses ? Are there not more broad 
national interests ? It would be difficult indeed to 
understand why the landowner in present England 
should have his house and not the manufacturer, the 
merchant, the wide educational interest, the sanitary 
interest, the artisan, the literary interest with the 
journalism. The excellence of the bicameral system 
in our representative (and not deputative) govern¬ 
ment does not rest on the representation of different 
interests, but on the different modes of composing _ 
the houses and their different duration. 


216 


ON CIVIL LIBERTY 


On the other hand we may observe that, when in 
1848 the French established a legislature of one 
house, they found themselves obliged to establish, 
by the constitution, a council of state, as the Athe¬ 
nians established the council (boule) to aid the 
general assembly (ecclesia). The French knew, in¬ 
stinctively if not otherwise, that a single house of 
French representatives would be exposed to the 
rashest legislation. The council of state, however, 
is not public, the members are appointed by the 
executive; in one word, what was gained ? Much 
indeed was lost. 

Whether the representative is the representative 
of his immediate constituents or of the nation at 
large, whether he ought to obey instructions sent 
him by his constituents—on these and other subjects 
connected with them I have treated at great length 
in my Political Ethics. I shall simply mention here 
the fact that civil liberty distinctly requires that the 
representative be the representative of his political 
' society at large, and not of his election district. The 
idea that he merely represents his immediate con¬ 
stituents is an idea which belongs to the middle ages 
and their deputative system,—not to our far nobler 
representative system. 

36. I hesitate whether I ought to enumerate the 
Veto as an Anglican guarantee of liberty. I hold it 
to be in our political system a check upon the legis¬ 
lature, and therefore a protection to the citizen; 
one that can be abused and probably has been 
abused, but everything intrusted to the hands of 


AND SELF-GOVERNMENT. 


217 


man may be abused. The question concerns its 
probable average operation. 

Although the veto is thus acknowledged to be an 
important part of our polity, it may be said no 
longer to exist in England. It has been men¬ 
tioned before that, should parliament pass a bill 
from which the ministers believe the royal assent 
should be withheld, they would not, according to 
present usage, expose the king to an open disagree¬ 
ment with the lords and commons, but they would 
resign, upon which an administration would be 
formed which would agree with parliament. 

Yet we have received the veto from England, and 
it is all these considerations which make me hesitate, 
as I said before, to call the veto an Anglican gua¬ 
rantee. 

The use of the veto can become very galling, and 
at such times we often find the party whose favorite 
measure has been vetoed vehemently attacking 
the principle itself. It was thus the whigs in the 
United States earnestly spoke and wrote against the 
principle, when general Jackson declined giving his 
assent to some measures they considered of great 
importance, and the democrats were loud in favor 
of the veto power because it had been used by a 
president of their own party. 

A great deal of confusion in treating this whole 
subject has arisen from the ill-chosen word veto, after 
the term used by the Eoman tribune. The veto of 
the Koman tribune and the so-called modern veto 
have nothing in common. The tribune could veto 
VOL. I.— 19 


218 


ON CIVIL LIBEETY 


indeed. When a law was passed he could wholly or 
partially stop its operation. The dispensatory power 
claimed by the Stuarts would have been a real veto. 
The chief of the state in the United States or England, 
however, has no such power. The law, so soon as 
it is law, says to every one: Hands off What we 
call the veto power, is in reality a power of an ab- 
nuent character, and ought to have been called the 
declinative. But this declinative is possessed in a 
much greater degree by each house against the 
other. To make a bill a law the concurrence of 
three parties is required—that of the two houses 
and the executive, and this concurrence may be with¬ 
held, otherwise it would not be concurrence. 

It is a wise provision in our constitution which 
directs that a bill not having received the president’s 
approval nevertheless passes into a law if two-thirds 
of congress adhere to the bill. Many of our state 
institutions do not require the concurrence of the 
executive. This is not felt in many cases as an evil 
because the action of the states is limited, but in my 
opinion it would be an evil day when the veto should 
be taken from the president of the United States. 
It would be the beginning of a state of things such 
as we daily observe with our South American neigh¬ 
bors. The American conditional veto is in a great 
measure a conciliatory principle with us, as the 
refusal of supplies is of an eminently conciliatory 
character in the British polity. 

The only case in which our executives have a real 
vetitive power, is the case of pardon, and most un¬ 
fortunately it is used in an alarming degree, against 


AND SELF-GOVERNMENT. 


219 


the supremacy of the law and the stability of right 
—both essential to civil liberty. I consider the 
indiscriminate pardoning, sb frequent in many parts 
of the United States, one of the most hostile things, 
now at work in our country, to a perfect govern¬ 
ment of law. In the only case, therefore, in which 
we have a real veto power, we ought greatly to 
modify it.’^ 


I shall append a paper on the subject of pardoning—a subject 
which has become all-irnportant in the United States. 



220 


ON CIVIL LIBERTY 


:= ' CHAPTER XVIII. 

INDEPENDENCE OF THE JUDICIARY, THE LAW, 

JUS, COMMON LAW. . 

87. One of the main stays of civil liberty, and 
quite as important as the representative principle, is 
that of which the independence of the judiciary 
forms a part, and which we shall call the independ¬ 
ence or the freedom of the law—of jus and justice.^ 
It is’ a great element of civil liberty and part of a 
real government of law, which in its totality has 
been developed by the Anglican tribe alone. It is 
this portion of freemen only, on the face of the 
earth, which enjoys it in its entirety. 

In the present case I do not take the term Law in 
the sense in which it was used when we treated of the 
supremacy of the law. I apply it now to everything 
that may be said to belong to the wide department 
of justice. I use it in the sense in which the Angli- 

‘ The lack of a proper word for jus, in the English language, 
induced me to use it on a few occasions in the Political Ethics. 
The Rev.. Dr. W. Whewell seems to have felt the same want, and 
uses it to designate a whole division of his work on the Elements of 
Morality, including Polity, London, 1845, as he also adopted the 
word jural first used in the Political Ethics. 



AND SELF-GOVERNMENT. 


221 


can lawyer takes it when he says that an opinion, or 
decision, or act is or is not law, or good law—an 
adaptation of the word peculiar to the English lan¬ 
guage. It is not the author’s fault that Law must 
be taken in one and the same essay, in which philo¬ 
sophical accuracy may be expected, in two different 
meanings. 

The word Law has obtained this peculiar meaning 
in our language, otherwise so discriminating in 
terms appertaining to politics and public matters, 
chiefly from two reasons. The first is the serious 
inconvenience, arising from the fact that our tongue 
has not two terms for the two very distinct ideas 
which in Latin are designated by Lex and Jus, in 
French by Lois and Droit, in German by Gesez and 
Kecht; the second is the fact, of which every An¬ 
glican may be proud, that the English jus has 
developed itself as an independent organism, and 
continues to do so with undiminished vitality. It is 
based upon a common law, acknowledged to be^ 
above the crown in England, and to be the broad 
basis of all our own constitutions—a body of law 
and “practice,” in the administration of justice, 
which has never been deadened by the superinduc¬ 
tion of a foreign and closed law, as was the case 
with the common law of those nations that received 
the civil law in a body as authority for all unsettled 
cases. The superinduction of the Latin language 
extinguished the living common languages of many 
tribes, or dried up the sources of expansive and 
formative life contained in them. 

The independence of the judges is a term hap- 

19 * 


222 


ON CIVIL LIBERTY 


pily of old standing with all political philosophers 
who have written in onr language; but it will be 
seen that the independence of the judiciary, by which 
is meant generally a position of the judge independ¬ 
ent of the executive or legislative, and chiefly, his 
appointment for life or immovability by the execu¬ 
tive, and frequently, the prohibition of a decrease or 
increase of his salary after his appointment has taken 
place—that this independence of the judiciary forms 
but a part of what I have been obliged to call the far 
more comprehensive Independence of the Law.^ 

The independence of the law, or the freedom of 
.jus, in the fullest and widest sense, requires a 
^ living common law, a clear division of the judiciary 
; from other powers, the public accusatorial process, 
the independence of the judge, the trial by jury, and 
an independent position of the advocate. These sub¬ 
jects will be treated in the order in which they have 
been enumerated here. 

A living common law is, as has been indicated, 
like a living common language, like a living com¬ 
mon architecture, like a living common literature. 
It has the principle of its own organic vitality, and 
of formative as well as assimilative expansion within 
itself. It consists in the customs and usages of the 


2 When therefore I published a small work on this subject, during 
my visit to Germany, in 1848, I called it Die Unabhdngigkeit der 
Justiz Oder die Freiheit des Eechts, Heidelberg, 1848. Literally 
translated this would be The Independence of Justice and Freedom 
of the Law. Justiz in German, however, does not mean the virtue 
justice, but the administration of justice; and Eecht means, in this 
connection. Jus, not a singlebut the body of rights and usages, 
laws and legal practice of a. people. 



AND SELF-GOVEENMENT. 


223 


people, the decisions which have been made accord-_ 
ingly in the course of administering justice itself, 
the principles which reason demands and practice 
applies to ever varying circumstances, and the ad¬ 
ministration of justice which has developed itself 
gradually and steadily. It requires, therefore, self¬ 
interpretation or interpretation by the judiciary it¬ 
self, the principle of the precedent and “practice” 
acknowledged as of an authoritative character, and 
not merely winked at; and, in general, it requires 
the non-interference of other branches of the govern¬ 
ment or any dictating power. The Koman law itself 
consisted of these elements and was developed in 
this manner so long as it was a living thing. 

The common law acknowledges statute or enacted 
law in the broadest sense, but it retains its own 
vitality even with reference to the lex scripta in 
this, that it decides by its own organism and upon 
its own principles, on the interpretation of the sta¬ 
tute when applied to concrete and complex cases. 
All that is pronounced in human language requires 
constant interpretation, except mathematics.^ Even 
if the English law should be codified, as at this 
moment the question of codification has been brought 
before parliament, the living common law would 
lose as little of its own inherent vigor and expansive¬ 
ness, as it has lost in Massachusetts or New York by 

3 Hence their own peculiar power and their peculiar narrowness. 

I have treated of this subject and the unceasing necessity of inter¬ 
pretation at the beginning of my Principles of Interpretation and 
Construetiop in fia'^y apd Politics, Poston, 1839. 



224 


ON CIVIL LIBERTY 


the “Eevised Statutes” of those states. The differ¬ 
ence between such a code in England and the codes 
which have been promulgated on the continent of 
Europe, would always consist in this, that the Eng¬ 
lish digest would have a retrospective character. 
It would be the garnering of a crop; but the living 
orchard is expected to bear new fruits, while it was 
the pronounced intention of the promulgators of con¬ 
tinental codices to estop all interpretation, for which 
end it was ordained, analogously to the rule of the 
civil law, that recourse should be had in all doubtful 
cases to the legislator, that is to the emperor or king, 
or to the officer appointed by the monarch for that 
purpose.^ 


* I cannot avoid referring again to my work on Hermeneutics or 
Principles of Interpretation and Construction, where this subject 
is repeatedly treated of, as it forms one of vital importance in all 
law, liberty, politics and self-government. I have given there in¬ 
stances of prohibited commenting and even lecturing, in the uni¬ 
versities, on the codes. This is the pervading spirit of the civil 
law as it was adopted by moderib nations. It is a necessary and 
combined consequence of the principle contained in the Justinian 
code itself, namely, that the emperor is the executive, legislator and 
all; that, therefore, no self-development of the law, such as had 
indeed produced the Roman jus, could any longer be allowed; and 
of the fact that the Roman law was adopted as a finished system 
from abroad. The principle of non-interpretation by the courts 
prevails for the same reasons in the canon law. I give the follow¬ 
ing as an interesting instance. 

The bull of pope Pius IV., 26 January, 1564, sanctioning and 
proclaiming the canons and decrees of the council of Trent, con¬ 
tains also the prohibition to publish interpretations and disserta¬ 
tions on these canons and decrees. The words of the bull, which 
correspond exactly to the authority reserved by government con¬ 
cerning the understanding of the law, where codes have been intro- 



AND SELF-GOVEENMENT. 


225 


Judge Story lias very clearly expressed wliat a 
code, with reference to the English law, ought to be. 
He says: “Notwithstanding all that is said to the 
contrary, I am a decided friend to codification, so as 
to fix in a text the law as it is, and ought to be, as 
far as it has gone, and leave new cases to furnish new 
doctrines as they arise and reduce these again at dis- ’ 
tant intervals into the text.”^ 

Locke on the other hand expresses the view which 
is almost always taken by philosophers who stop 
short with theory and do not add the necessary con¬ 
siderations of the statesman and friend of practical 
liberty, when he proposed the following passage in 
the constitution he drew up foi* South Carolina: 
“ Since multiplicity of comments as well as of laws 
have great inconvenience, and serve only to obscure 
and perplex; all manner of comments and exposi¬ 
tions, on any part of these fundamental constitutions, 


duced, and the common law principle is not acknowledged, are 
these: 

“Ad vitandam proeterea perversionem et confusionem, qum oriri 
posset, si unicnique liceret, prout ei liberet, in decreta Concilii 
commentaries et interpretatlones suas edere, Apostolica auctoritate 
inhibemus omnibus—ne quis sine auctoritate nosti'a audeat ullos 
commentaries, glossas, admonitiones, scholia, ullumve interpreta- 
tionis genus super ipsius Concilii decretis, quocunque modo, edere, 
aut quidquam quocunque nomine, etiam sub prjetexta majoris de- 
cretorum corroberationis, aut executionis, aliove qumstio colore, 
statuere.” 

The papal bull goes on declaring that if there be any obscurity in 
the decrees the doubter shall ascend to the place which the Lord 
has appointed, viz. the apostolic see, and that the pope will solve 
the doubts. 

5 Life and Letters of Judge Story, vol. i. p. 448, 



226 


ON CIVIL LIBERTY 


or on any part of the common or statute laws of 
Carolina, are absolutely prohibited.”® 

This is quite as strong as the Bavarian code or the 
pope’s decree, mentioned in a previous note. The 
fact is simply this: on the one hand analyzing and 
systematizing is one of the very parts of humanity, 
and development, growth, assimilation and adapta¬ 
tion are the very elements of life. Man has to lay 
out his road between the two, and of course will 
incline more to the one or the other according to 
the bias of his mind or the general course of reason¬ 
ing common to his peculiar science or profession. 

If interpretation, which takes place when the 
general rule is applied to a concrete case, is not left 
to the law itself, the law ceases to have its own life, 
and the citizen ceases strictly to live under the law. 
He lives under the dictating or interfering power, 
because each practical case, that is each time that 
the rule passes over from an abstraction into a real¬ 
ity, is subject to that power, be it, as it generally is, 
the executive, or the legislative. This does not 
exclude what is called authentic interpretation, or 
interpretation by the legislature itself, for future 
cases. Accurately speaking, authentic interpretation 
is no interpretation, but rather additional legislation. 
We would distinctly exclude, however, retrospective 
authentic interpretation; for this amounts, indeed, to 
an application of the law by the legislature, and is 
incompatible with a true government of law. It is 
obvious that the same holds with reference to all 


® Locke’s Constitution for South Carolina, 1669, paragraph 80. 



AND SELF-GOVERNMENT. 227 

power, whether monarchical or popular. The law 
must be the lord and our “ earthly god,” and not a 
man, a set of men, or the multitude. 

As to the principle of the precedent, it is one of 
the elements of all development, contradistinguished 
to dictation and mere command. Everything that 
is a progressive continuum requires the precedent. 
A precedent in law is an ascertained principle ap¬ 
plied to a new class of cases, which in the variety 
of practical life has offered itself. It rests on law 
and reason, which is law itself. It is not absolute. 
It does not possess binding power merely as a fact, 
or as an occurrence. If that were the case, Anaxi¬ 
mander would have been right when he said that 
Themis was standing by the throne of Alexander to 
stamp with right and justice whatever he did. JSTor 
is it unchangeable. A precedent can be overruled. 
But again, it must be done by the law itself, and 
that which upsets the precedent cannot otherwise 
than become, in the independent life of the law, 
precedent in turn.^ 

The continental lawyers have a great fear of the 
precedent, but they forget that their almost wor¬ 
shipped Koman law itself was built up by precedent. 
Indeed they do not comprehend the nature of the 
precedent, its origin and its power, as an element of 

’ Dr. Greenleaf published, in Portland, Maine, 1821, A Collec¬ 
tion of Cases overruled, doubted, or limited in their Application, 
taken from American and English Reports. Several subsequent 
editions have been published, with additions, for which Dr. Green- 
leaf however has declared himself irresponsible. 



228 


ON CIVIL LIBEKTY 


a free jus. They frequently point to the fact that 
the most tyrannical acts of the Stuarts were founded 
upon real or presumed precedents, and that crown 
lawyers helped in the nefarious work; but they for¬ 
get that British liberty was also rescued from des¬ 
potism in a great measure by lawyers footing on the 
common law. Nothing gave to the popular party 
more strength than the precedent. On this par¬ 
ticular subject, and on the nature of the precedent 
and the distinction of the legal from the executive 
precedent, as well as the eminent danger of regard¬ 
ing a mere fact as a precedent, I have fully treated 
in two other works.® The present work does not 
permit me to enter more fully on the subject, or to 
repeat what I have there said. A truth of the 
weightiest importance it remains, that liberty and 
steady progression require the principle of the pre¬ 
cedent in all spheres. It is one of the roots with 
which the tree of liberty fastens in the soil of real 
life, and through which it receives the sap of fresh 
existence. It is the weapon by which interference 
is warded off. The principle of the precedent is 
eminently philosophical. 

Every great idea has its caricature, and the more 
unfailingly so, the more actively and practically the 
idea is working in real life. It is, therefore, natural 
that we should meet with caricatures of the prece¬ 
dent especially in England, as the English have been 
obliged to build up slowly and gradually that system 

8 In my Ethics, and especially in my Principles of Legal and 
Political Interpretation and Construction. 



AND SELF-GOVEENMENT. 


229 


of liberty and tbe independence of the law, wliicb we 
have carried over to this country in a body, and 
which we have farther developed. When we read 
that at every opening of a new parliament a com¬ 
mittee of the commons proceeds—lantern in hand— 
to the cellar niider the house, to see no modern Guy 
Fawkes has collected combustibles there for the 
purpose of exploding parliament, because the thing 
had been done under James the First, we must ac¬ 
knowledge the procedure more pitiful, though far 
more innocent, than Alexander’s dragging the body 
of the gallant Betis at the wheels of his chariot 
round the walls of Gaza, in order to follow the 
precedent of his progenitor Achilles. But this is 
caricature, and it is unphilosophical to point at the 
case, in order to prove the futility or mischief of 
the precedent. It is a proper subject for Punch to 
exterminate such farces, not for us to discuss them, 
any more than seriously treating the French pub¬ 
licist who, speaking of the intrigues of the legiti¬ 
mists, lately said that the elder Bourbons should 
remember that Louis Napoleon had created for him¬ 
self a formidable precedent, in the spoliation of the 
Orleans branch. Nero’s fiddle might at this rate 
legalize the sentimental burning of any capital. 

The precedent has been called judge-made law, 
and as such deprecated. A more correct term woukl 
be court-evolved law. If the precedent is bad, let 
it be overruled by all means, or let the legislature. 
regulate the matter by statute. Bacon’s dictum, 
already quoted, that the worst of things is the apo¬ 
theosis of error, applies to the bad precedent as 
VOL. I. —20 


230 


ON CIVIL LIBEKTY 


forcibly as to any other error, but the difficulty is not 
avoided by simply disavowing the precedent. Some 
one must decide. Now is it better that government 
or a “minister of justice” shall lay down a rule in 
the style of the civil law, or that the principle shall 
be decided in court by the whole organism esta¬ 
blished to give reality and practical life to justice, 
and in the natural course of things? 

Continental jurists, when they compare the civil 
law with the common law, always commit this 
error, that they merely compare the contents of 
the two great systems of law on which I shall pre¬ 
sently say a few words; whilst they invariably for¬ 
get to add to the comparison this difference, that 
the civil law, where it now exists, has been intro¬ 
duced as a dead and foreign law; it is a matter 
of learned study, of antiquity; while common law 
is a living, vigorous law of a living people. It is 
this that constitutes more than half its excellence; 
and though we should have brought from England 
all else, our liberty, had we adopted the civil law, 
would have had a very precarious existence. Judge 
Story relates, “as perfectly well authenticated, that 
president (John) Adams, when he was vice-president 
of the United States, and Blount’s conspiracy was 
before the senate, and the question whether the com¬ 
mon law was to be adopted was discussed before that 
body, emphatically exclaimed, when all looked at 
him for his opinion as that of a great lawyer, that if 
he had ever imagined that the common law had not 
by the revolution become the law of the United 
States under the new government, he never would 


AND SELF-GOVERNMENT. 


231 


liave drawn his sword in the contest. So dear to him 
were the great privileges which that law recognized 
and enforced.”® 

The civil law excels the common law in some 
points. Where the relations of property are con¬ 
cerned, it reasons clearly and its language is admi¬ 
rable, but as to personal rights, the freedom of the 
citizen, the trial, the independence of the law, the* 
principles of self-government, and the supremacy of 
the law, the common law is incomparably superior. 

Nor has the civil law remained Avithout its influ¬ 
ence, but it never superseded the common law. The 
common law remained a living system, and it assimi-. 
lated to itself parts of the civil law as it assimilates 
any other thing. For instance, judge Story, in one 
of his essays, says: The doctrine of bailments, too, 
was almost struck out at a single beat by lord IIolt,“ 
who had the good sense to incorporate into the Eng¬ 
lish code that system which the text and the com¬ 
mentaries of the civil laAV had already built up on 
the continent of Europe. 


9 Page 299, vol. i. Life and Letters of Joseph Story. 

The civil law, a law of wisdom but of servitude; the law of a 
great commercial empire, digested in the days of Justinian, and 
containing all the principles of justice and equity suited to the rela¬ 
tions of men in society with each other; but a law under which the 
head of government was “ Imperator Augustus, legibus solutus.”— 
John Quincy Adams, seventh president of the United States, in a 
letter to Judge Story, page 20, vol. ii. Life and Letters of Judge 
Story. 

The case of Coggs v. Bernard, 2 ed. Raym. R. 909—note by 
judge Story. 

Story’s Miscellaneous Writings, p. 224. 



232 


ON CIVIL LIBERTY 


The common law is all the time expanding and 
improving. I have given a very interesting instance 
of this fact, in the law of whalers, which has de¬ 
veloped itself among the hardy hnnters of the Paci¬ 
fic,’^ and has been acknowledged, when the proper 
occasion offered itself, in the courts of Massa¬ 
chusetts.*'* 


In a sipiilar, though in a far less interesting way, I observe 
that a whole code has established itself for the extensive sale of 
books at auction in London. It is a real specimen of the genius of 
one part of common law. 

See Article Common Law, in the Encyclopaedia Americana. It 
was written, as many others on subjects of law, by my lamented 
friend, judge Story. An opportunity has never offered itself to 
me publicly to acknowledge the great obligation under which I am 
to that distinguished jurist, for the assistance he most readily and 
cheerfully gave me in editing the Americana. I shall never forget 
the offer he made to contribute some articles when I complained of 
my embarrassment as to getting proper articles on the main sub¬ 
jects of law, for my work intended for the general reader. Many 
of them were sent from Washington, while he was fully occupied 
wdth the important business of the supreme court. He himself 
made out the list of articles to be contributed by him, and I do not 
remember ever having been obliged to wait for one. The only con¬ 
dition this kind-hearted man made was that I should not publish 
the fact that he had contributed the articles in the work until some 
period subsequent to their appearance. They have met with much 
approbation, and I hope I am not guilty of indiscretion, if I state 
here that another friend, a distinguished orator and lawyer, the 
lion. William C. Preston, has repeatedly expressed his admiration 
of them. 

The contributions of judge Story to the Americana “comprise 
more than 120 pages, closely printed in double columns. Biit a 
higher interest than that growing out of their intrinsic worth 
belongs to them. They were labors dedicated purely to friendship, 
and illustrate a generosity which is as beautiful as it is rare.” To 
these words, copied from p. 27, vol. ii. of Life and Letters of 



AND SELF-GOVERNMENT. 


283 


Joseph Story, where a list of all his contributions may be found, I 
may add that judge Story made his offer at a time when he to 
whom it was made was known to very few persons in this country, 
and had but lately arrived here; and that he took at once the 
liveliest and most active interest in the whole enterprise, and con¬ 
tributed much to cheer on the stranger in his arduous task. I may 
be permitted to add that the friendship then commenced steadily 
grew until death removed the excellent man. 


20 * 

I 




234 


ON CIVIL LIBERTY 




CHAPTER XIX. 

<. 

INDEPENDENCE OF JUS, SELF-DEVELOPMENT OF LAW 
CONTINUED. ACCUSATORIAL AND INQUISITORIAL 
TRIALS. INDEPENDENCE OF THE JUDGE. 

38. The practice or usage of tlie administration of 
justice belongs of right to the development of that 
administration itself, avowedly so, and not merely 
b}^ connivance. ‘ 

In countries in which this important principle is 
not acknowledged, certain changes, produced by 
“practice,” were and are, nevertheless, winked at, 
and happily so, because legislation has neglected to 
make the necessary changes, and humanity will not 
be outraged. Thus, in German countries, practice 
had abolished the application of the torture and 
fearful punishments, demanded by positive law, long 
before they were abolished by law. But it was an 
exception only demanded by common sense and by 
a general feeling of humanity. 


* Lord IMansfield, in a note to a Scottish judge, who had asked 
his advice as to the introduction of trial by jury in civil cases into 
Scotland, has this remark: “ Great alterations in the course of the 
administration of justice ought to be sparingly made and by degrees, 
and rather by the court than by the legislature.” Lord Campbell’s 
Ch. Justices of England, vol. ii. p.'554. 



AND SELF-GOVERNMENT. 


' 235 


Tlie common law of the Anglican tribe, however, 
assigns the right of development to the courts. It 
is part and parcel of the common law. Innumerable 
instances and of almost daily occurrence might be 
given. 

The following instance is given here simply be¬ 
cause the writer happens to think first of it, and 
because it seems to be an apt illustration. 

When a court is directed to sit two weeks, and 
a jury, being summoned to act for the first week of 
the term, and having retired to consider of their 
''verdict before midnight of Saturday, in the first 
week, return into court after midnight, and before 
daylight of Sunday; shall or shall not their verdict 
be received and published? Shall it be rejected on 
the ground that Sunday is a dies noiijuridicas ? This 
question was lately decided in South Carolina, not 
by applying for information to a “ minister of justice,” 
or “ the emperor,” as the civil law directs, but by 
itself, upon the principle of vital self-sufficiency, by 
inquiry into its own principles, and an examination 
of precedents in the whole range of English law, and 
of statute laws, if there were any exactly applying 
to the case under consideration.^ 


2 The learned “ opinion” of the court of errors was delivered by 
judge Wardlaw, Hiller v. English, 4 Strokhart’s Reports, Columbia, 
S, C. 1850. While I was writing this, the supreme court of Mas¬ 
sachusetts decided that the “squeeze of the hand” of a dying per¬ 
son, unable to speak, but having been made aware of the fact that 
the pressure would be taken as an affirmative, may be taken as 
“a dying declaration,” though with caution.—National Intelli¬ 
gencer, Washington, May 21, 1853. 



236 


ON CIVIL LIBERTY 


This principle of self-development is important 
likewise with reference to a clear division of the 
judiciary from other branches of the public power. 
The law is not independent, and consequently the 
citizen not free, where aught else than the adminis¬ 
tration of justice belongs to the court, and where 
anything that belongs to the administration of justice 
is decided by any one but the courts ; where things 
are decided by aught else than the natural course of 
law, and where, as has been stated, interpretation or 
application belongs to any one else than to the judi¬ 
ciary.^ Hence there ought to be no pressure from 
without, either by a Stuart sending for the judges to 
tamper with them, or to ask them how they would 
decide a certain case if brought before them, or by a 
multitude assuming the name of the people. No judge 
ought to give his opinion before the practical case has 
come on and been discussed according to law, either 
to monarch, political party, or suitor. He is an inte¬ 
gral part of the Law, but only a part, which must 
not be disconnected from the Law. There must not 
be what are called in France administratifs^ 

nor any extraordinary or exceptional courts, as has 
been mentioned; no judgments by extraordinary com- 

® Even the Constitution of the French Republic of 1848 said, 
article 89: 

“ Conflicts of privileges and duties between the administrative 
and judicial authority shall be regulated by a special tribunal com¬ 
posed of members of the court of cassation and of counsellors of 
state, to be appointed, every three years, in equal number, by the 
respective bodies to which they belong. This tribunal shall be 
presided over by the minister of justice.” 



AND SELF-GOVERNMENT. 


237 


missions, nor any decisions by tlie executive about 
tbe application of tlie law. The following instance is 
liere given, not because the case is of itself important, 
but because it exhibits the principle with perfect clear¬ 
ness, and because it refers to a royal proclamation— 
an executive act. The English government had 
published in 1852 a proclamation against the public 
appearance of Koman catholics in their religious 
vestments; and the well-known father Newman 
asked the secretary for the home department whether 
this royal proclamation must be considered as directed 
also against the appearing in “ cassocks and cloaks” 
in the streets of Birmingham, where the Eoman catho¬ 
lics had thus been in the habit of appearing “ under 
legal advice” for full four years. The answer of secre¬ 
tary Walpole, one of the ministers, was this: 

“ I am to inform you, that her majesty’s proclama¬ 
tion is directed against all violations of the 26th sec¬ 
tion of the statute 10th George lY. c. 7, and that if 
you feel any difficulty in the construction of the 
enactment, your proper course will be to consult your 
legal adviser. The secretary of state would not be 
justified in pronouncing an opinion on the question 
submitted to him; for if any doubt exists on the 
point, the decision of it must rest with the courts of, 
law, and not with the government.”^ 

There is no country except ours and England 
where a similar answer would, or indeed could, have 
been given. Everywhere else it would have been 

The letter is dated June 24, 1852. London Spectator, July 3, 
1852. 



238 


ON CIVIL LIBERTY 


called a destruction of tlie principle of unity in the go¬ 
vernment. We call it a small but choice cabinet speci¬ 
men of a most noble principle, forming an element of 
our very polities. Nor must it be forgotten that it 
was a tory government which made this exclusively 
Anglican reply. The reader will remember the 
directly opposite principle declared in the bull of 
pope Pius lY., quoted before, as well as Locke’s pro¬ 
vision in his constitution for South Carolina. 

89. The public accusatorial trial is another element 
of the independence of the Law, as it is one of the 
efficient protections of the citizen. By accusatorial 
process is understood here, not what is generally 
understood by the term of trial by accusation (that 
is, individual accusation),^ but that penal trial which 
places the court wholly above the two parties in 
criminal matters, as the judge is everywhere placed, 
at least theoretically so, in civil cases; although the 
two parties be the prosecuting state or government 
on the one hand, and the indicted person on the 
other. The accusatorial trial is thus contradistin¬ 
guished from the inquisitorial trial, which came into 
use through the canon law, and especially through 
the unhallowed witch trials. In it, the judge inquires, 
investigates, in one word, is the prosecuting party as 
well as the judging, and in some cases he is even 
expected to be likewise the protecting party of the 
indicted prisoner, thus uniting a triad of functions 


6 There was no public prosecutor in Rome. An individual ap¬ 
peared as accuser, and formed throughout the trial the prosecuting 
party. See article Criminal Law, in the Encyclop. Americ. 



AND SELF-GOVERNMENT. 


239 


within himself which amounts to a psychological in¬ 
congruity.® 

It may be said that the public accusatorial trial 
has prevailed or been aimed at by all free nations, 
modern and ancient. We, the English, the Nether- 
landers, the Norwegians, the Swedes, the French, 
since the first revolution,^ the Germans, in the earlier 
times the Greeks and Komans—all have or had 
it, but it has nowhere been carried out with that 
consistency which we find in the Anglican penal 
trial. 

The penal trial or procedure is quite as important 
as the criminal law itself, and with reference to pro¬ 
tection, to liberty, to a pervading consciousness of 
manly rights, it is even more so. This is the chief 
reason which explains why the English, the freest 
nation of Europe, endured so long one of the worst 
and most unphilosophical body of criminal laws— 
so sanguinary in its character that the monstrosity 
came to pass, of calling all punishments not capital, 
secondary punishments, as if death were the current 
penal coin, and the rest of punishments merely the 
copper to make small “ change.” The English pub¬ 
lic accusatorial process, since the expulsion of the 
Stuarts, contained great guarantees of public security, 
even while those deficiencies yet existed which have 


® See Feuei’bach on tlie Jury, 

7 Under the present absolutism, the trial is of course at the 
mercy of the executive, if the government has any interest in the 
matter; that is, punishments are inflicted without trial, and certain 
offences are punished summarily, although punished with severe 
visitation of the law. 



240 


ON CIVIL LIBEETY 


been remedied of late, tbanks to sir Samuel Komilly 
and sir Kobert Peel. 

"We consider that the accusatorial procedure, car¬ 
ried out with consistency and good faith, requires that 
the accusation itself be not made by the executive, 

' but upon information, by whomsoever made, through 
an act, which itself includes a guarantee against 
frivolous or oppressive accusation; for, as has been 
stated, trial itself, though followed by acquittal, is a 
hardship. Hence the importance of a grand jury, 
and the constitution of the United States ordains 
that “ no person shall be held to answer for a capital 
or otherwise infamous crime unless on a presentment 
or indictment of a grand jury.” The French penal 
trial contains no such guarantee. It has passed over 
into the fundamental laws of all our states. It is 
further necessary that the whole trial be bona fide 
public and remain bona fide accusatorial. Hence no 
secret examinations of the prisoner by the public 
prosecutor before the trial, the results of which are 
to be used at the trial, ought to take place, as this 
actually forms p'art of the French penal trial. On the 
other hand, the judge should remain, during the trial, 
mere judge, and never become inquirer or part of 

• the prosecution, as this is likewise the case in France. 

• Nor must the prisoner be asked to incriminate him¬ 
self. All this belongs to the inquisitorial trial. The 

• indictment must be clear, and the prosecuting officer 
must not state his whole case before the witnesses 
are examined, nor be allowed to bring in irrelevant 
matter. Lastly, full scope must be given to counsel 
for prisoner. In all these details most of the accusa- 


AND SELF-GOVERNMENT. 


241 


torial trials except the Anglican are more or less, 
and some sadly deficient, 

40. The independence of the law or administra¬ 
tion of justice requires the independence of the 
judge. All the guarantees we have mentioned sup¬ 
port the judge in his independence, and are requisite 
for it. He cannot be so without a distinct separa¬ 
tion of the judiciary from the other branches of the 
government, without a living self-sustaining jus, or 
without the accusatorial procedure. But more is 
necessary. 

The appointment, the duration in office and the 
removal must be so that the judge feels no depend¬ 
ence upon any one or anything, except the law 
itself. This ought to be the case at least in as high a 
degree as it is possible for human wisdom to make 
it, or for human frailty to carry out.® Where there 
is a pervading publicity in the political life, an inde¬ 
pendent bar and self-sustaining jus and administra¬ 
tion of justice, with responsible ministers of the ex¬ 
ecutive or a responsible chief magistrate, carefully 
limited in his power, there is probably as little dan¬ 
ger of having bad judges, in giving the appointing 
power to the executive, especially if, as is the case 
with us, the senate must confirm the appointment, as 
in any other mode of appointing—indeed, far less 
danger than in those other modes which so far have 
been adopted in many of our states. Where pecu¬ 
liar fitness, peculiar skill and learning and peculiar 
aptitude are requisite, it is for many psychological 

^ See Federalist, No. Ixxviii. and sequ. 

VOL. I.— 21 



242 


ON CIVIL LIBERTY 


reasons the best to throw the responsibility of ap¬ 
pointing on a few or one, so that it be concentrated, 
provided these few or the one are made to feel by a 
proper organization that they are responsible to the 
public. It is unwise to give such appointments to 
irresponsible bodies, or to numerous bodies, which, 
according to the universal deception of a divided 
responsibility, are not apt to feel the requisite pres¬ 
sure of responsibility, and necessarily must act by 
groups or parties. 

Laws ought to be the result of mutually modifying 
compromise; many appointments ought not. Elec¬ 
tion in such cases, by a large body, would lead to few 
efficient and truly serviceable ambassadors, and it 
has long been settled by that nation, which probably 
knows most about the most efficient appointment of 
university professors, the Germans, that their ap¬ 
pointment by election, either by a numerous corpora¬ 
tion or by the professors of a university themselves, 
is to be discarded.® 

These remarks apply to the appointment of judges 
by legislatures. As to the election of judges by the 
‘people themselves, which has now been established 
in many of the United States, it is founded, in my 
opinion, on a radical error—the confusion of mistak¬ 
ing popular power alone for liberty, and the idea 
that the more the one is increased, in so much a 
higher degree will the other be enjoyed. As if all 


® The remarks of that wise philosopher, sir William Hamilton, 
on the election of professors, in his minor works, apply, so far as I 
remember them now, with equal force, and probably Avith greater 
strength, to the election of judges. 



AND SELF-GOVERNMENT. 


243 


power, no matter wliat name be given to it, if it 
sways as power alone, were not absolutism, and had 
not the inherent tendency, natural to all power, to 
increase in absorbing strength! All despotic gov¬ 
ernments, whether the absolutism rests with an indi¬ 
vidual or the people (meaning of course the majority), 
strive to make the judiciary dependent upon them¬ 
selves. Louis the Fourteenth did it, and every abso¬ 
lute democracy has done it. All essential, practical 
liberty, like all sterling law itself, loves the light of 
common sense and plain experience. All absolutism, 
if indeed we except the mere brutal despotism of the 
sword, which despises every question of right, loves 
mysticism—the mysticism of some divine right. 
The monarchical absolutists do it, and the popular 
absolutists do the same. But there is no mystery 
about the word People. People means an aggregate 
of individuals to each of whom we deny any divine 
right, and to each of whom,—I, you, and every one 
included,—we justly ascribe frailties, failings, and the 
possibility of subordinating judgment and virtue to 
passion and vice. Each one of them separately 
stands in need of moderating and protecting laws 
and constitutions, and all of them unitedly as much 
so. Where the people are the first and chiefest 
source of all power, as is the case with us, the elect¬ 
ing of judges, and especially their election for a 
limited time, is nothing less than an invasion of the 
necessary division of power, and a bringing of the 
judiciary within the influence of the power-holder. 
It is therefore a diminution of liberty, for it is of 
the last importance to place the judge between the 


244 


ON CIVIL LIBERTY 


chief power and the party, and to protect him as the 
independent, not the absolute, organ of the law. 

Those of our states, which have of late given the 
appointment of judges to popular elections, labor 
under a surprising inconsistency; for all those states, 
I believe, exclude judges from the legislature. They 
fear “political judges,” yet make them elective. 
N’ow, everything electional within the state is neces- 
‘ sarily political. If the physician of a hospital, the 
captain of a vessel, or the watchmaker to repair our 
timepieces, were elective by the people, they would, 
to a certainty, in most cases, be elected, not according 
to their medical, nautical, or horological skill and 
trustworthiness, but on political grounds. There is 
nothing reproachful in this, to the people at large. 
It is the natural course of things. Even the mem¬ 
bers of the French Academy have been elected on 
political grounds, when the government took a deep 
interest in the election. 

The question whether judges ought to sit in the 
house of commons was recently before parliament.^® 
There are many English authorities on the American 
side of the question, at least so far as the house of 
commons is concerned. Lords Brougham and Lang- 
dale, sir Samuel Eomilly and Mr. Curran may be 
mentioned as such. On the other hand, Mr. Bentham 
was of opinion that there was so little legislative 

•0 See Mr. Macaiilay’s speech in the commons, June 1, 1853, on a 
bill to exclude judges from the house of commons. The chief ques¬ 
tion was to exclude the vice-chancellor from a seat in the commons. 
Mr. Macaulay is decidedly in favor of letting judges sit in the 
commons. 



AND SELF-GOVERNMENT. 


245 


talent in tlie world that no place fits so well for 
legislative business as the bench, and that it was 
suicidal to exclude the judges. The questions we 
have to answer are these: Does experience teach us 
that judges, having a seat in the legislature, where 
they needs must belong to one or the other party, 
allow themselves to be influenced on the bench ? 
In England, there are striking instances that, in 
modern times, they may resist their own political 
bias, in Eldon, Thurlow, Mansfield, and Hardwicke. 
But this remark extends to common cases only. 
Were they, or would they have been utterly un¬ 
biased in all those trials that may be called political? 
The pervading character of self-government and 
independence of law has certainly given to the bench 
a traditional independence. But how long has this 
existed, and w^hat times may not possibly recur? It 
appears, throughout the Life and Correspondence of 
justice Story, that so soon as he was elevated to the 
bench he not only avoided being mixed up with 
politics in any degree whatsoever, but even the mere 
semblance of it. He seems to have been peculiarly 
scrupulous on this point. 

The second question we must answer is this: How 
does the judge get into the legislature ? Can he do 
so without electioneering? The more popular a 
representative government is, the more necessary 
the immediate contact between the candidate and the 
constituents becomes. And who wishes to see the 
judge, that ought to be the independent oracle of 
the law, in this position ? 

Mr. Bentham’s observation regarding the general 
21 ^ 


246 


ON CIVIL LIBEETY 


unfitness of the world at large for legislative busi¬ 
ness, and the peculiar fitness of judges for it, requires 
also some modification. How is it with sanitary 
laws ? Few physicians sit in legislatures, and those 
that have a seat are not placed there because they 
are at the head of their profession. We must neces¬ 
sarily trust to the general influence under which a 
legislature legislates. As to the fitting of the bench 
for legislative business, it is undoubtedly true in 
regard of a large class of that business; but we must 
not forget that the judge is and ought to be a pecu¬ 
liar representative of conservatism; which never- 
* theless unfits him, in a measure, for all that business 
which is of a peculiarly progressive character. 
Almost all law reforms have originally been resisted 
by the bench. It is not in all cases to be regretted. 
They are the breaks, which prevent the vehicle from 
descending too fast on an inclined plane; but the 
retarding force must certainly be overcome in many 
cases, however serviceable it may be that the action 
of overcoming them may have been modified by 
them in its very process. 

I cannot help believing, then, that upon the whole 
judges ought to be excluded from the legislature; 
they certainly ought to be so with us. To allow 
them a seat in concentrated governments as in 
France would be calamitous. But this very reason 
is, a fortiori, one why judges ought not to be elected 
by the people. 

We are frequently asked whether the elective 
judiciary works badly ? The answer is, that a ball 
rolls a while from the first impulse given to it. So 


AND SELF-GOVERNMENT. 


247 


far old judges have generally been elected under tlie 
new system; and we would ask on the other hand: 
Has the former system worked badly ? I believe, 
then, that elective judges are a departure from sub¬ 
stantial civil liberty, because it is a departure from 
the all-important independence of the law. 

It is necessary to appoint judges for a long period, 
and the best is probably for life, with a proper pro-. 
vision which prevents incapacity from old age.” 
The experience which is required and the authority 
he must have, although unsupported by any material 
power, make this equally desirable, as well as the 
fact, that the best legal talents cannot be obtained 
for the bench, if the tenure amounts to a mere inter¬ 
ruption of the business of the lawyer.” The consti¬ 
tution of the French republic of 1848, so democratic 
in its character, decrees the tenure of judicial office 
to be for life.” 

It is for a similar reason of public importance that 
the salary of the judges be liberal, which means that,, 
combined with the honor attached to a seat on the 
bench, it be capable of commanding the fairest legal 
talents, and of inciting the ambition of the bench. The 
judge must enjoy, as has been stated, proper independ¬ 
ence ; but he is dependent, and in the worst degree 
so, if he is conscious that the best lawyers before him 

“ See Political Ethics, under the heads of Judge, Independence of 
the Judiciary. 

*2 I would refer the reader, on all these subjects, to judge Cham¬ 
bers’s speech on the Judicial Tenure, in the Maryland Convention, 
Baltimore, 1851. 

*3 This constitution will be found in the appendix. 



248 


ON CIVIL LIBEETY 


are superior to him in talent, experience, learning 
and character. None but such inferior men can be 
obtained for an illiberal salary, according to the uni¬ 
versal law that the laborer is worthy of his hire, and 
that he will seek to obtain this hire in the great 
market of labor and talent. Even the common con¬ 
sideration that every private individual expects that 
his affairs will be served best by an efficient clerk 
for a liberal hire, and not by a poorly paid hireling 
whose incapacity can command no higher wages, 
should induce us to pay judges, as indeed every one 
who must be paid, and is Avorthy of being paid at 
all, with a liberality which equally avoids lavishness 
and penury. Liberal salaries are essential to a 
popular government. 

To make judges independent or remove from them 
the possible suspicion of dependence, it has been 
ordered in the constitution of the United States that 
the “judges of the supreme and inferior courts shall 
hold their offices during good behavior, and shall at 
stated times receive for their services a compensation 
which shall not be diminished during their con¬ 
tinuance in office.” This principle has been adopted 
in most, if not all our constitutions; many have 
added that it shall not be increased either, during 
continuance in office.^'* But what is the possible 
dependence feared from an increase or decrease of 
salary compared to that unavoidable dependence 

When it has become necessary to increase the salary of judges, 
the difficulty has sometimes been avoided by the judges resigning, 
upon the understanding that, after the legislature shall have in¬ 
creased the salary, they should be reappointed. 



AND SELF-GOVERNMENT. 


249 


wliicli must be the consequence of short terms of 
office, and of appointment by election? It will 
hardly be necessary to mention that a fixed salary, 
independent of fees and fines, is indispensable for* 
the independence of the judge and the protection of 
the citizen. Even common decency requires it. Don 
Miguel of Portugal made the judges, who tried poli¬ 
tical offenders, depend upon part of the fines and 
confiscations they decreed, and we know what was 
done under James the Second and lord Jeffreys. 
The hounds, receiving part of the hunted game, sug¬ 
gest themselves at once. 

With a view of making the judiciary independent, 
the removal of judges from office has been justly 
taken out of the hands of the executive. The im¬ 
movability of judges is an essential element of civil 
liberty. Neither the executive nor the sovereign 
himself ought to have the power of removing a 
judge. He can therefore be removed by impeach¬ 
ment only, and this requires, according to the consti¬ 
tution of the United States, two-thirds of the votes 
of the senate. In some states they can be removed 
by two-thirds of the whole legislature.^^ 


It seems to me a sti’ange anomaly that, as it would seem by a 
late resolution of the United States senate, the president has 
authority to remove judges in the “ territories.” 



250 


ON CIVIL LIBEKTY 


CHAPTER XX. 

INDEPENDENCE OF JUS, CONTINUED. TRIAL BY JURY. 

THE ADVOCATE. 

41. The judge cannot occupy a sufficiently inde¬ 
pendent position between the parties by the accu¬ 
satorial proceeding alone. If there is not what may 
be called a division of the judicial labor, separating 
the finding of guilt or innocence, or of the facts from 
the presiding over the whole trial and the applica¬ 
tion as well as the pronouncing and expounding of 
the law, the judge must still be exposed to taking 
sides in the trial. This division of judicial labor is 
obtained by the institution of the jury. This, it 
seems to me, is one of the most essential advantages 
of this comprehensive, self-grown institution. It is 
likewise a guarantee of liberty in giving the people a 
_ participation in the administration of justice, without 
the ruin and horrors of an administration of justice 
by a multitude, as at Athens. The jury is moreover 
the best school of the citizen, both in teaching him 
his rights and to protect them, and of practically 
teaching him the necessity of law and government. 
The jury, in this respect, is eminently conservative. 
In this, as in many other respects, it is necessary 


AND SELF-GOVEENMENT. 


251 


that the institution of the jury exist for the civil trial 
as well as for the penal, and not, as in many other 
countries, for the latter only. The necessity of the 
jury does not militate against the arbitration courts, 
which have proved a great blessing in all countries 
in which they have been properly established, or 
against certain courts of minor importance which 
may be advantageously conducted without a jury.^ 
The results of trial by jury have occasionally been, 
such that even in England and here, voices have 
been raised against it, not indeed very loud or by 
weighty authorities. Men feel the existing evil only; 
not those that would result- a hundredfold from an 
opposite state of things. ISTor are those, who feel 
irritated at some results of the trial by jury, ac¬ 
quainted with the operation of trials without jury. 
So is occasionally the publicity of trials highly in¬ 
convenient ; yet should we desire secret trials ? Li¬ 
berty, as we conceive it, can no more exist without 
the trial by jury—that “buttress of liberty,” as 
Chatham called it,^ and our ancestors worshipped 
it—than without the representative system. 

The Declaration of Independence specifies, as one 
of the reasons why this country was justified in 
severing itself from the mother country, that Ameri¬ 
cans have been “deprived in many cases of the 
benefits of trial by jury.” 


* For the history of this institution in general, the reader is re¬ 
ferred to William Forsyth, History of the Trial by Jury, London, 
1852 . 

2 Lord Erskine, when he was raised to the peerage, adopted the 
words Trial by Jury, as the scroll of his coat of arms. 




252 


ON CIVIL LIBEETY 


It may not be improper here to enumerate briefly 
all the advantages of so great an institution, whether 
they are directly connected with liberty or not. 

The trial by jury, then, divides the labor of the 
administration of justice, and permits each part 
quietly to find the truth in the sphere assigned 
to it; 

It allows the judge to stand, as the independent 
organ of the law, not only above the parties, hostilely 
arraigned against each other, but also above the 
whole concrete case before the court; 

It enables plain common and practical sense pro¬ 
perly to admix itself with keen professional and 
scientific distinction, in each single case, and thus 
prevents the effect of that disposition to sacrifice 
reality to attenuated theory, to which every indi¬ 
vidual is liable in his own profession and peculiar 
pursuit—the worship of the means, forgetting the 
end f 


® And this is the reason that nearly all great reforms have 
■worked their way from without, and from the non-professional 
to the professional, or from below upward. 

I beg to arrest the reader’s attention for a moment on this sub¬ 
ject. 

In all civilized countries it is acknowledged that there are some 
important cases, which on the one hand it is necessary to decide, 
for Mine and Thine are involved, and which, on the other hand, are 
not of a character that the lines of demarcation can be drawn with ' 
absolute distinctness, in a manner which would make it easy to 
apply the law; e. g. the cases which relate to the imitation of a 
part of a work of art, of a pattern, or the question of a bona fide 
extract from an author’s work, which, according to the Prussian 
copyright law, were to be decided by a jury of “experts,” long before 
the general introduction of the jury in that country. A similar case 



AND SELF-GOVERNMENT. 


253 


It makes a participation of the people in the ad¬ 
ministration of justice possible without having the 

is presented when an officer is accused of unofficer-like and ungen- 
tleraanly conduct. Now the question becomes: Are not these cases 
far more frequent than it is supposed in the countries where the 
trial by jury does not exist ? Are not almost all complex cases, such 
as require in a high degree good strong common sense, the tact of 
practical life, together with the law, to be justly decided ? Are not, 
perhaps, the greater part of civil cases such ? The English and 
Americans seem to believe they are. They believe that close logical 
reasoning is indeed necessary in the application of the law, and 
they assign this to the law-officers, but they believe also that a high 
degree of plain good common sense, unshackled by technicalities, is 
necessary to decide whether, “upon the whole,” “taken all in all,” 
the individual case in hand is such as to bring it within the province 
of the specific law, with reference to which it is brought before the 
court, and they assign this part of the trial to the jury, that is to 
non-professional citizens. The English, and the people of some 
American states, do not only follow this view in the first stage of 
a case, but, in order to avoid the evil of letting technicalities get 
the better of essential justice, of letting the minds of professional 
lawyers, whose very duty it is to train themselves^ in strict, uncom¬ 
promising logic, decide complicated and important cases in the last 
resort, they allow an appeal from all the judges to the house of 
lords, or to the senate. I do not mention this last fact as one to be 
imitated, but merely as corroborating what I have stated before. 

It appears to me an important fact, which ought always to be re¬ 
membered when the subject of the trial by jury in general is dis¬ 
cussed, that by the trial by jury, the Anglican race endeavors, among 
other things, to insure the continuous and necessary admixture of 
common sense, in the decision of cases; and who can deny that in 
all practical cases, in all controversies, in all disputes, and in all 
cases which require the application of general rules or principles 
to concrete cases, whatsoever common sense is indispensable, is 
that sound judgment which avoids the Nimium ? Who will deny 
that every one is liable to have this tact and plain soundness of 
judgment impaired in that very line or sphere in which his calling 
has made it his duty to settle general principles, to find general 

VOL. I.— 22 




254 


ON CIVIL LIBERTY 


' serious evil of courts, consisting of multitudes or 
! mobs, or tlie confusion of the branches of the ad¬ 
ministration of justice, of judges and triers; 

It obtains the great advantage of a mean of views 
of facts, regarding which Aristotle said that many 
are more just than one, although each one were less 
so than the one; without incurring the disadvantages 
and the injustice of vague multitudes; 

It brings, in most cases, a degree of personal ac- 
^ quaintance with the parties, and frequently with the 
witnesses, to aid in deciding; 

It gives the people opportunities to ward off the 
inadmissible and strained demands of the govern¬ 
ment 

It is necessary for a complete accusatorial pro¬ 
cedure ; 

It makes the administration of justice a matter of 
the people, and awakens confidence; 

It binds the citizen with increased public spirit to 
the government of his commonwealth, and gives him 
a constant and renewed share in one of the highest 

rules, to defend general points ? The grammarian, by profession,, 
frequently, perhaps, generally, writes pedantically and stiffly; the : 
religious controversialist goes to extremes ; the philosopher, by 
profession, is apt to divide, distinguish, and classify beyond what 
reality warrants; the soldier, by profession, is apt to sacrifice ad¬ 
vantages to his science. Dr. Sangrado is the caricature of the truth 
here maintained. 

The denial of the necessity of profound study and professional 
occupation would be as fanatical as the disregard of common sense 
would be supercilious and unphilosophical. Truth stands, in all 
spheres, emphatically in need of both. 

The whole history of the libel down to Charles Fox’s immor¬ 
tal bill may serve as an illustration. 



AND SELF-GOVERNMENT. 


255 


public affairs, the application of the abstract law to 
the reality of life—the administration of justice; 

It teaches law and liberty, order and rights, jus¬ 
tice and government, and carries this knowledge 
over the land;^ . - 

It throws a great part of the responsibility upon 
the people, and thus elevates the citizen while it ^ 
legitimately streng-thens the government; 

It does not only elevate the judge, but makes him 
a popular magistrate, looked up to with confidence*^ 
and favor; which is nowhere else the case in the 
same degree, and yet is of great importance, es¬ 
pecially for liberty; 

It is the great bulwark of liberty in monarchies 
against the crown, and a safety-valve in republics; 

^ It alone makes it possible to decide to the satisfac¬ 
tion of the public those cases which must be decided, ^ 
and which nevertheless do not lie within the strict 
limits of the positive law; 


5 Lord Chancellor Cranwofth said, in February, 1853, in the house 
of lords: 

“ There were many other subjects to be considered. Trial by 
judge instead of by jury had been eminently successful in the county 
courts; but in attempting to extend this to cases tried in other 
courts, we must not lose sight of the fact that we should be taking 
a step towards unfitting for their duties those who are to send re¬ 
presentatives to the other house of parliament, who are to perform 
municipal functions in towns, and who are to exercise a variety of 
those local jurisdictions which constitute in some sort in this coim- 
try a system of self-government. It may be very dangerous to 
withdraw from them that duty of assisting in the administration of 
justice. Mechanics’ schools may afford valuable instruction, but I 
doubt if there is any school that reads such practical lessons of 
wisdom, and tends so much to strengthen the mind, as assisting as 
jurymen in the administration of justice.” 



256 


ON CIVIL LIBERTY 


It alone makes it possible to reconcile, in some 
degree, old and cruel laws, if the legislature omits to 
abolish them, with a spirit of humanity, which the 
judge could never do without undermining the 
ground on which alone he can have a firm footing; 

It is hardly possible to imagine a living, vigorous 
and expanding common law without it; 

It is with the representative system one of the 
greatest institutions which develop the love of the 
law, and without this love there can be no sove¬ 
reignty of the law in the true sense; 

It is part and parcel of the Anglican self-govern¬ 
ment ; 

It gives to the advocate that independent and 
honored position which the accusatorial process as 
well as liberty requires, and it is a .school for those 
great advocates without which broad popular liberty 
does not exist. 

Mr. Hallam, speaking in his work on the Middle 
Ages of “ the grand principle of the Saxon polity, 
the trial of facts by the country,” says, “ from this 
principle (except as to that preposterous relic of bar¬ 
barism, the requirement of unanimity) may we never 
swerve—may we never be compelled in wish to 
swerve—by a contempt of their oaths in jurors, a dis¬ 
regard of the just limits of their trusts.” To these 
latter words I shall only add, that the fact of the 
jury’s being called by the law the country, and of 
the indicted person’s saying that he will be tried by 
God and his country, are facts full of meaning, and 
expressive of a great part of the beauty and the ad- 


AND SELF-GOVEENMENT. 


257 


vantages of the trial by jury.'’ There is, however, no 
mysterious efficacy inherent in this or any other 
institution, nor any peculiar property in the name. 
Juries must be well organized, and must conscien¬ 
tiously do their duty. They become, like all other 
guarantees of liberty, very dangerous in the hands 
of the government, when nothing but the form is 
left, and the spirit of loyalty and of liberty is gone. 
A corrupt or facile jury is the most convenient thing 
for despotism and anarchy. 

The jury trial has been mentioned here as one of 
the guarantees of liberty, and it might not be improper 
to add some remarks on the question whether the 
unanimous verdict ought to be retained, or whether a 
verdict as the result of two-thirds, or a simple major¬ 
ity of jurors agreeing, ought to be adopted. This 
is an important subject, occupying the serious atten¬ 
tion of many persons. But, however important the 
subject may be, and connected as I believe it to be 
with the very continuance of the trial by jury as a 
wholesome institution, and with the supremacy of 
the law, it is one still so much debated that a proper 
discussion would far exceed the limits to which this 
work is restricted; and the mere avowal that it is 
my firm conviction, after long observation and study, 
that the unanimity principle ought to be given up,’ 
would bejof_nq value. I beg, however, to add as a 
fact, at all events of interest to the student, that 
Locke was against the unanimity principle. His 

6 On all these subjects connected with the jury I must refer to 
the Political Ethics. 


'22* 




258 


ON CIVIL LIBEKTY 


constitution for South Carolina has this provision: 
“ Every jury shall consist of twelve men; and it shall 
not be necessary they should all agree, but the ver¬ 
dict shall be according to the consent of the majority.” 

It is besides a well-known fact that our number of 
twelve jurymen, and the principle of their unanimity, 
arose out of the fact that in ancient times at least 
twelve of the compurgators were obliged to agree 
before a verdict could be given, and that compurga¬ 
tors were added until twelve of them agreed one way 
or the other 

I conclude here my remarks on the institution of 
the jury, and pass over to the last element of the 
independence of the law—the independent position 
of the advocate. 

42. Where the inquisitorial trial exists, where the 
judiciary in general is not independent, and where 
the judges more or less feel themselves, and are 
universally considered, as government officers, it is 
in vain to look for independent advocates, as a class 
of men. Their whole position, especially where the 
trial is not public, prevents the development of this 
independence, and the consideration they have to 
take of their future career would soon check it 
where it might occasionally happen to spring forth.® 


Forsyth, History of the Trial by Jury. 

® Feuerbach, in his Manual of the Common German Penal Law, 
lOtli edition, § 623, says that in the inquisitorial proceeding we 
have to represent the judge to our minds as the representative of 
the offended state, inasmuch as it is his duty to see justice done 
for it according to the penal law; as representative of the accused, 
inasmuch as he is bound at the same time to find out everything on 
which the innocence or a less degree of criminality can be founded ; 



AND SELF-GOVERNMENT. 


259 


The independence of the advocate is important in 
many respects. The prisoner, in penal trials, ought to 
have connsel. Even lord Jeffrey, who, among judges, 
is what Alexander the Sixth was among popes, 
declared it, as far back as the seventeenth century, a 
cruel anomaly that counsel were permitted in a case 
of a few shillings, but not in a case of life and death. 
But counsel of the prisoner can be of no avail, if 
' they do not feel themselves independent in a very 
high degree. This independence is necessary for the 
daily protection of the citizen’s rights. It is import¬ 
ant for a proper and sound development of the 
law; for it is not only the decisions of the j udges 
which frequently settle the most weighty points and 

and finally, as judge, inasmuch as he must decide upon the given 
facts. Why not add to this fearful triad, the jailer, the execiitioner ? 

Although a “ defensor” is ai)pointed, it is difficult for him to do 
his work properly ; for in the German inquisitorial process the 
defence begins when the inquiring judge has finished, or the “ acta” 
are closed, that, is when the report of the judge is made. Now, a 
lawyer does not feel very free to attack the writing of a judge, 
upon whom his advancement probably depends, even if any latitude 
were given to the advocate. Mr. Mittermaier, note d, | 14, of his 
Art of Defending, 2d edition, speaks openly of the great difficulty 
encountered by the “ defensor, ” in unveiling the imperfections of 
the acia which have been sent him, because he thereby offends his 
superior, upon whom his whole career may depend; and Mr. Voget, 
the defensor of the woman Gottfried, in Bremen, who had poisoned 
some thirty persons, fully indorses these remarks of Mi*. Mitter¬ 
maier, in his work. The Poisoner, G. M. Gottfried, Bremen, 1830 
(first division, pp. 17 and 18). lie concludes his remarks with 
these words; “Who does not occasionally think of the passage 1 
Sam. 29: 6—Non inveni in te quidquam mali, sed satrapis non 
places,” (or, as our version of the bible has it: Nevertheless, the 
lords favor thee not.) 




260 


ON CIVIL LIBEKTY 


rights, but also the masterly arguments of the advo¬ 
cates; and lastly it is important in all so-called 
political trials. 

May we never have reason to wish it otherwise ! 
The limits of the advocate, especially as counsel in 
criminal cases, and which doubtless form a subject 
connected with liberty itself, nevertheless belong 
more properly to political and especially to legal 
ethics. As such I have treated of them in the 
Political Ethics. I own, however, that, when writing 
the work, the subject had not acquired in my mind 
all the importance and distinctness which its farther 
pursuit, and the perusal of works on this important 
chapter of practical ethics, have produced. I am 
sorry to say that very few of these works or essays 
seem manfully to grapple with it, and to put it upon 
solid ground. It is desirable that this should be 
done thoroughly and philosophically. This is the 
more necessary, as the loosest and vaguest notions 
on the rights of the advocate are entertained by 
many respectable men, and the most untenable 
opinions have been uttered by high authorities.® 

In this work, however, all that I am permitted to 
do is to indicate the true position of the advocate in 
our Anglican system of justice, and to allude to the 
duties flowing from it. 

Most writers discuss “ the time-honored usage of 

9 For instance, lord Brougham’s well-known dictum uttered at 
the trial of queen Caroline—often commented upon, but never taken 
back or modified by the speaker; p. 91, Legal and Political Herme¬ 
neutics. See also an article on License of Counsel in the January 
number 1841 of Westminster BevieAv. 



AND SELF-GOVEENMENT. 


261 


the profession in advocating one side,” and of saying 
all that can be said in defence of the prisoner. No 
one at all conversant with the subject has ever had 
any doubt upon this subject. It is a necessary effect 
of the accusatorial procedure. Indeed, it forms an 
essential part of it. But the writers go on main¬ 
taining that therefore the advocate may, and indeed 
must, do and say for his client all that he himself 
would do and say for himself, had he the requisite 
talent and knowledge. And here lies the error,' 
moral as well as legal. 

No man is allowed to do wrong, for instance to tell 
an untruth, or to asperse the character of an innocent 
person, either in his own behalf or for another. The 
prisoner would do wrong in lying, and no one has a 
right to do it for him. The lawyer is no more freed 
from the moral law or the obligation of truth than 
any other mortal, nor can he divest himself of his 
individuality any more than other men. If, as lord 
Brougham stated it, the only object of counsel is to 
free the prisoner, at whatever risk, why, then, not 
also do certain things for the prisoner which he would 
do, were he free ? Many an indicted murderer would 
make away with a dangerous witness, if the prison 
did not prevent him. Why, then, ought not the law¬ 
yer to do this for him ? Because it would be mur¬ 
der ? And why not ? If the advocate is to say and 
do all the prisoner would do and say for himself,. 
irrespective of morality, the supposed case is more 
glaring, indeed, but in principle the same with many 
actual ones. The fact is, the rights of the advocate, or 
the defence of their speaking on one side, cannot be 


262 


ON CIVIL LIBERTY 


put on a worse foundation than by thus making him 
a part of the prisoner’s individuality, or a substitute. 
Nor would there be a more degrading position than 
that of letting one’s talent or knowledge for hire, no 
matter whether for just or unjust, moral or immoral 
purposes. Indeed, why should this knowledge for 
hire begin its appropriate operation during the trial 
only, if escape is the only object ? Why not try to foil 
the endeavors of the detective police? Is it only 
because the retaining fee has not yet been paid, and 
that, so soon as it is in his hand, he has a right to say 
with the ancient poet: I deem no speaking evil that 
results in gain?^® This cannot be. All of us have 
learned to venerate Socrates, whom lord Mansfield 
calls the greatest of lawyers, for having made victo¬ 
rious war on the sophists, and established ethics on 
pure and dignified principles; and now we are called 
upon to sanction everything, without reference to mo¬ 
rality and truth, in an entire and highly privileged 
class, and in the performance of the most sacred busi¬ 
ness of which political man has any knowledge. If 
lawyers insist upon this revolting exemption from 
the eternal laws of truth and rectitude, they ought to 
consider that this will serve in the end as a suggestion 
to the people of returning to the Athenian court of 
the people. 

The true position of the advocate in the Anglican 
accusatorial trial, and in a free and orderly country, 
is not one which would almost assimilate him to the 
“receiver.” It is a far different one. Nearly in all 


AsxS) fxh ovhv fflv Ks^hi kukov. 



AND SELF-GOVERNMENT. 


263 


free conntries, but especially in all modern free 
countries, has the advocate assumed a prominent po¬ 
sition. lie is an important person as advocate, and 
as belonging to that profession from which the people 
necessarily must always take many of their most 
efficient law-makers, from which arise many of the 
greatest statesmen, whatever the English prejudice, 
even of such men as Chatham, to the contrary, may 
long have been, and which has formed in every free 
people many of their immortal orators. 

The advocate is part and parcel of the whole ma¬ 
chinery of administering justice, as much so as the* 
jury, the judge, or the prosecutor. He forms an 
integral part of the whole contrivance called the 
trial; and the only object of the trial is to find out 
legal truth, so that justice may be administered. In 
this trial, it has been found most desirable to place 
the judge beyond the parties, to let both parties ap-^ 
pear before him and to let both parties say all they 
can say in their favor, so that the truth may be ascer¬ 
tained without the judge’s taking part in the inquiry, 
and thus becoming personally interested in the con¬ 
viction, or in either party. The advocate is essentially 
an amicus curiae ; he helps to find the truth, and for. 
this purpose it is necessary that all that can be said 
in favor of his client or in mitigation of the law, be ‘ 
stated; because the opposite party does the opposite, 
and because the case as well as the law ought to be 
viewed from all sides, before a decision be made. 
The advocate ought not only to say all that his client 
might say, had he the necessary skill and knowledge, 
but even more; but the client or prisoner has no 


264 


ON CIVIL LIBERTY 


right to speak the untruth in his own behalf, nor 
has the lawyer the right to do it for him. 

Chief-Justice Hale severely reproves the misstat¬ 
ing authorities and thus misleading J;he court, but 
why should this be wrong, and < the misstating of 
facts not ? Many prisoners would certainly misstate 
authorities if they could. Trials are not established 
for lawyers to show their skill or to get their fees, 
nor for arraigned persons to escape. They are es¬ 
tablished as a means of ascertaining truth and dis¬ 
pensing justice ; but not to promote or aid injustice 
or immorality. The advocate’s duty is, then, to say 
everything that possibly can be said in favor of his 
case or client, even if he does not feel any strong 
reliance on his argument, because what appears to 
himself weak may not appear ,as such to other minds 
or may contain some truth which will modify the 
result of the whole. But he is not alloAved to use 
falsehood, nor to injure others. ‘ Allowing this to 
him would not be independence, but an arbitrarily 
privileged position, tyrannical toward the rest of 
society.“ To allow tricks to a whole profession, or 
to claim them by law, seems monstrous. Is there a 
separate decalogue for lawyers ? 


The famous case of Mr. Philips, iioav on the bench, when de¬ 
fending Courvoisier, is treated at considerable length in Townsend’s 
modern State Trials, under the trial of Courvoisier. It must be 
allowed that the defence is not successful, though ingenious. On 
page 312 of vol. i. of that work the reader will also find the titles 
of numerous writings bearing on the moral obligations of the advo¬ 
cate, to which may be added those I have mentioned in the notes 
appended to my remarks on the advocate in the 2d vol. of the Po¬ 
litical Ethics. I also refer to pp. 59 and sequ. in my Character of 
tjie Gentleman, Charleston, S. C. 1847. 



AND SELF-GOVERNMENT. 


265 


The lawyer is obliged, as was stated before, to find 
out everything that can be found in favor of the 
person who has intrusted himself to his protecting 
care, because the opposite will be done by the oppo¬ 
site" party. He has no right to decline the defence of 
a person, which means the finding out for him all 
that fairly can be said in his favor, except indeed in 
very peculiar cases. Declining the defence before¬ 
hand would amount to a prejudging of the case, and 
in the division of judicial labor every one ought to 
be defended.The defence of possible innocence, 
not the defeat of justice, is the aim of counsel. 

Great advocates themselves, such as Komilly,^^ have 
very distinctly pronounced themselves against that 
view which seems at present the prevailing one 
among the lawyers; and Dr. Thomas Arnold was so 

*2 At the very moment that these pages are passing thi’ough the 
press, a case has occurred in an English court, of a young man in¬ 
dicted for burglariously entering the room of some young woman. 
His counsel in the defence suggested that probably the young lady 
had given an appointment to the prisoner. “That is not in the brief,” 
cried the prisoner himself, and the court justly reprimanded the bar¬ 
rister. It ought to be added that in this case the barrister wrote a 
letter of submission to the court. This has not been done in other 
cases quite as bad in principle. Thus, another publicly reproved 
barrister insisted that he had done what the profession required, 
when he had resorted to the following trick. lie had subpoenaed 
the chief witness against his client, so that he could not appear, 
and then argued that the prosecutor must know his client to be 
innocent, else he would certainly have produced his witness, &c. 

There is a very excellent passage on this subject in the reflec¬ 
tions of sir Samuel Romilly, on himself and the good he might do, 
should he be appointed Lord Chancellor, page 384 and sequ. of 
vol. iii. of his Memoirs, 2d ed. London, 1840. 

VOL. I.— 28 



266 


ON CIVIL LIBERTY 


deeply impressed with the moral danger to which 
the profession of the law, at present, exposes its 
votary, that he used to persuade his pupils not to 
become lawyers, while Mr. Bentham openly declared 
that no person could escape, and that even Eomilly 
had not remained wholly untainted. 

It ought to be observed, however, that a more 
correct opinion on the obligations of the advocate 
seems to be fast gaining ground in England. At 
present it seems to be restricted to the public, but 
the time will come when this opinion will reach the 
profession itself. Like almost all reforms, it comes 
from without, and will ultimately force an entrance 
into the courts and the inns. We are thus earnest 
in our desire of seeing correct views on this subject 
prevail, because we have so high an opinion of the 
importance of the advocate in a modern free polity. 


AND SELF-GOVERNMENT. 


267 


/ ' 


CHAPTER XXI. 

SELF-GOVERNMENT. ' 

43. The last constituent of our liberty that I shall 
mention is local and institutional self-government.^ 

* The history of this proud word is this; It was doubtless made 
in imitation of the Greek autonomy, and seems originally to have 
been used in a moral sense only. It is of frequent occurrence in 
the works of the divines who flourished in the sixteenth and seven¬ 
teenth centuries. After that period it appears to have been dropped 
for a time. We find it in none of the English dictionaries, although 
along list of words is given compounded with self, and among them 
many which are now wholly out of use; for instance, Shakspeare’s 
Self-sovereignty. In Dr. Worcester’s Universal and Grit. Dictionary 
the word is marked with a star, which denotes that he has added 
it to Dr. Johnson’s, and the authority given is Paley, who to my cer¬ 
tain knowledge does not use it in his Political Philosophy, nor have 
several of my friends succeeded in finding it in any other part of 
his works, although diligent search has been made. 

Whether the term was first used for political self-government in 
England or America I have not been able to ascertain. Richard 
Price, D. D., used it in a political sense in his Observations on the 
Nature of Civil Liberty, &c. 3d edition, London, 177G, although it 
does not clearly appear whether he means what we now designate 
by independence, or internal (domestic) self-government. JelFerson 
said in 1798 that “the residuary rights are reserved to their (the 
American States) own self-government.'''’ The term is now freely 
used both in England and America. In the former country we find 
a book on Local Self-government; in ours, Daniel Webster said, on 
May the 22d, 1852, in his Faneuil Hall speech: “But I say to you 



268 


ON CIVIL LIBERTY 


Many of tlie guarantees of individual liberty which 
have been mentioned receive their true import in a 
pervading system of self-government, and on the 


and to our whole country, and to all the crowned heads and aristo¬ 
cratic powers and feudal systems that exist, that it is to self-govern¬ 
ment, the great principle of popular representation and administra¬ 
tion—the system that lets in all to participate in the counsels that 
are to assign the good or evil to all—that we may owe what we are 
and what we hope to be.” 

Earl Derby, when lately premier, said, in the house of lords, that 
the officers sent from abroad to assist in the funeral of the duke of 
Wellington would “bear witness back to their own country how 
safely and to what extent a people might be relied upon in whom 
the strongest hold of their government was their own reverence and 
respect for the free institutions of their country, and the principles 
of popular self-government controlled and modified by constitutional 
monarchy.” 

In one word, self government is now largely used on both sides of 
the Atlantic, in a political sense. 

This modern use of the word is no innovation, as it was no inno¬ 
vation when St. Paul used the old Greek word wi'a-Tt? in the vastly 
expanded sense of Christian faith. Ideas must be designated. The 
innovation was Christianity itself, not the use of the word to desig¬ 
nate an idea greater than Pistis could have signified before. 

That self-government in politics is always applied by the English 
speaking race for the self-government of the people or of an insti¬ 
tution, in other words that self has in this sense a reflective mean¬ 
ing, is as natural as the fact itself that the word has come, in course 
of time, to be applied to political government, simply because we 
must express the idea of a people or a part of a people who govern 
themselves and are not governed by some one else. It is as natural 
as that in Russia the word self should be used in the term autocrat 
(self-ruler) not in its reflective, but in its exclusive sense, and 
should mean him that himself rules. 

Self-government belongs to the Anglican race, and the English 
word is used even by foreigners. A German and a French states¬ 
man, both distinguished in literature and politics, used not long ago 
the English word in conversations in their own languages with me. 



AND SELF-GOVERNMENT. 269 

other hand are its refreshing springs. Individual 
liberty consists, in a great measure, in politically 
acknowledged self-reliance, and self-government is 
the sanction of self-reliance and self-determination in 
the various minor and larger circles in which govern¬ 
ment acts and of which it consists. Without local 
self-government, in other words self-government con¬ 
sistently carried out and applied to the realities of 
life, and not remaining a mere general theory, there 
is no real self-government according to Anglican 
views and feelings. Self-government is founded on 
the willingness of the people to take care of their 
own affairs, and the absence of that disposition which 
looks to the general government for everything; as 
well as on the willingness in each to let others take 
care of their own affairs. It cannot exist where the 
general principle of interference prevails, that is, the 
general disposition in what is commonly called the 
government, to do all it possibly can do and to sub¬ 
stitute its action for individual or minor activity and 
for self-reliance. Self-government is the corollary of 
liberty. So far we have chiefly spoken of that part, 
of liberty which consists in checks, except indeed 
when we treated of representative legislatures; self- 
government may be said to be liberty in action. It 
requires a pervading conviction throughout the whole 
community that government, and especially the exe¬ 
cutive and administrative branch, should do nothing- 
but what it necessarily must do, and which cannot, 
or ought not, or will not be done by self-action; and 
that, moreover, it should allow matters to grow and 
develop themselves. Self-government implies self- 
23 ^^ 


270 


ON CIVIL LIBERTY 


institution, not only at the first setting out of govern¬ 
ment, but as a permanent principle of political life. 
In a pervading self-government, the formative action 
of the citizens is the rule; the general action of the 
government is the exception, and only an aid. The 
common action of government in this system is not 
originative, but regulative and moderative, or con¬ 
ciliative and adjusting. Self-government, therefore, 
transacts by far the greater bulk of all public business 
through citizens, who, even while clad with authority, 
remain essentially and strictly citizens, and parts of 
the people. It does not create nor tolerate a vast 
hierarchy of officers, forming a class of mandarins for 
themselves, and acting as though they formed and 
were the state, and the people only the substratum 
on which the state is founded, similar to the former 
view that the church consists of the hierarchy of 
priests and that the laity are only the ground on 
which it stands. 

A pervading self-government, in the Anglican 
sense, is organic. It does not consist in the mere 
negation of power, which would be absurd, for all 
government implies power, authority on the one 
hand and obedience on the other; nor does it consist 
in mere absence of action, as little as the mere absence 
of censorship in China is liberty of the press. It 
consists in organs of combined self-action, in institu¬ 
tions, and in a systematic connection of these institu¬ 
tions. It is therefore the opposite at once of a 
disintegration of society into individual, dismembered 
and sejunctive independencies, and of despotism, 
whether this consist in the satrapic despotism of the 


AND SELF-GOVERNMENT. 


271 


east (in wliicli the pacha or satrap embodies indeed 
the general principle of unfreedom in relation to his 
superior, but is a miniature despot or sultan to all 
below him), or whether it consist in the centralized 
despotism resting on a compact and thoroughly sys- 
temized hierarchy of officials, as in China, or in the 
European despotic countries. Anglican self-govern¬ 
ment differs in principle from the sejunction into 
which ultimately the government of the Netherlands 
lapsed; and it is equally far from popular absolutism, 
in which the majority is the absolute despot. Tlie 
majority may shift, indeed, in popular absolutism, but 
the principle does not, and the whole can only be 
called a mutual tyrannizing society, not a self-govern¬ 
ment. An American orator of note has lately called 
self-government, a people sitting in committee of 
the whole. It is a happy expression of what he con¬ 
ceives self-government to be. We understand at 
once what he means; but what he means is the 
Athenian market democracy, in its worst time, or as 
a French writer has expressed it, Le peuple-empereur, 
the people-despot. It is, in fact, one of the opposites 
of self-government, as much so as Napoleon the First 
expressed another opposite in his favorite dictum: 
“Everything for the people, nothing by the people.” , 
Self-government means: Everything for the. people, 
and by the people, considered as the totality of 
organic institutions, constantly evolving in their 
character, as all organic life is, but not a dictatorial 
multitude. Dictating is the rule of the army, not of 
liberty; it is the destruction of individuality. But 
liberty, as we have seen, consists in a great measure 
in protection of individuality. 


272 


ON CIVIL LIBERTY 


While Napoleon the First thus epigrammatically 
expressed the essence of French centralization,^ his 
chief antagonist, William Pitt, even the tory premier, 
conld not help becoming the organ of Anglican self- 
government, as appears from the anecdote, which I 
relate in full as it was lately given to the public, 
because the indorsement by the uncompromising 
soldier gives it additional meaning: 

“A day or two before the death of the duke of 
Wellington, referring to the subject of civic feasts, 
he told an incident in the life of Pitt which is worth 
recording. The last public dinner which Pitt attended 
was at the Mansion house; when his health was pro¬ 
posed as the savior of his country. The duke ex¬ 
pressed his admiration of Pitt’s speech in reply; 
which was in substance, that the country had saved 
herself by her own exertions, and that every other 
country might do the same by following her ex¬ 
ample.”^ 

Self-government is in its nature the opposite to 
political apathy and that moral torpidity or social 
indifference which is sure to give free play to abso- 

2 As to the first part of this imperial dictum—tout pour le peu- 
ple—we know very well how difficult it is to know what is for the 
people, without institutional indexes of public opinion, and how 
easy it is, even for the wisest and the best, to mistake and substitute 
individual, family and class interests and passions for the wants of 
the people. This indeed constitutes one of the inherent and greatest 
difficulties of monarchical despotism. A benevolent eastern despot 
could not have said it, for there is no people, politically speaking, 
in Asia; and for a European ruler it was either hypocritical, or 
showing that Napoleon Avas ignorant of the drift of modern civiliza¬ 
tion, of which political development forms so large a portion. 

3 London Spectator, of September 18, 1852. 



AND SELF-GOVEENMENT. 


273 


latism, or else to dissolve the whole polity. We 
have a fearful instance in the later Eoman empire. 
It draws its strength from self-reliance, as has been 
stated, and it promotes it in turn; it cannot exist 
where there is not in each a disposition, ability and 
manliness of character, willing and able to acknow¬ 
ledge it in others. Nothing strikes an observer, accus¬ 
tomed to Anglican self-government, mere strongly 
in France than the constant desire and tendency 
even in the French democracy to interfere with 
all things and actions, and to leave nothing to self¬ 
development. Self-government requires politically, 
in bodies, that self-rule which moral self-government 
requires of the individual—the readiness of resigning 
the use of power which we may possess, quite as 
often as using it. Yet it would be a great mistake 
to suppose that self-government implies weakness. 
Absolutism is weak, which indeed can summon great 
strength upon certain occasions, as all concentration 
can; but it is no school of strength or character; nor 
is a certain concentration by any means foreign to 
self-government, but it is not left in the hands of the 
executive, to use it arbitrarily. Nor is it maintained^ 
that self-government necessarily leads in each single 
case soonest and most directly to a desired end, es¬ 
pecially when this belongs to the physical welfare of 
the people, nor that absolute and centralized govern¬ 
ments may not occasionally perform brilliant deeds, 
or carry out sudden improvements on a vast scale 
which it may not be in the power of self-govern¬ 
ments so rapidly to execute. But the main question 
for the freeman is which is the most befitting to man 


274 


ON CIVIL LIBERTY 


in his nobler state; which produces the best and 
most lasting results upon the whole and in the long 
run; which effects the greatest stability and continu¬ 
ity of development; in which is more action of 
sound and healthful life and not of feverish parox¬ 
ysms ? Is it the brilliant exploits which constitute 
the grandeur of nations if surveyed in history, and 
are there not many brilliant actions peculiar to self- 
government and denied to centralized absolutism ? 

Where self-government does not exist, the people 
are always exposed to the danger that the end of 
government is lost sight of, and that governments 
assume themselves as their own ends, sometimes 
under the name of the country, sometimes under the 
name of the ruling house. Where self-government 
exists, a somewhat similar danger presents itself 
in political parties. They, too, frequently assume 
themselves as the end and object, and forget that they 
can have a right meaning only if they are in the 
service of the country. Man is always exposed to 
the danger of substituting the means for the ends. 
The variations we might make on the ancient Propter 
vitam vivendi perdere causas, with perfect justice, are 
indeed endless.** 

Napoleon the First, who well knew the character 
of absolute government and pursued it as the great 
end of his life, nevertheless speaks of the impuis- 
sance de la force—the impotency of power. He 

Would not all the following, and many more find their daily 
applications: Propter imperium imperandi perdere causas; Propter 
ecclesiam ecclesim perdere causas; Propter legem legis perdere 
causas; Propter argumcntationem argument! perdere causas; 
Propter dictionem dicendi perdere causas ? 



AND SELF-GOVERNMENT. 275 

felt, on his imperial throne, which on another and 
public occasion he called wood and velvet unless oc¬ 
cupied by him, and which was but another wording of 
Louis the Fourteenth’s I’^tat c’estmoi, that which all 
sultans have felt when their janizaries deposed them 
—he felt, that of all governments the czar-govern- 
ment is the most precarious. He felt what, with 
other important truths, Mr. de Tocqueville had the 
boldness to tell the national assembly, in a carefully 
considered report of a committee, in 1-851, when he 
said: 

“ That people, of all nations in the whole world, 
which has indeed overthrown its government more 
frequently than any other, has, nevertheless, the 
habit, and feels more than any other the necessity of 
being ruled. 

“ The nations which have a federal existence, even 
those which, without having divided the sovereignty, 
possess an aristocracy, or who enjoy provincial liber¬ 
ties deeply rooted in their traditions—these nations 
are able to exist a long time with a feeble govern¬ 
ment, and even to support, for a certain period, the 
complete absence of a government. Each part of 
the people has its own life, which permits society to^ 
support itself for some time when the general life is 
suspended. But are we one of those nations ? Have . 
we not centralized all matters, and thus created of 
all governments that which, indeed, it is easiest to 
upset, but with which it is at the same time the most 
difficult to dispense for a moment?”^ 


5 Mr. de Tocqueville made this report on the 8th of July, in 
the name of the majority of that committee, to which had been 



276 ' 


ON CIVIL LIBEETY 


With this extract I conclude, for the present, my 
remarks on self-government, and with them the enu¬ 
meration of the guarantees and institutions which 
characterize, and in their aggregate constitute An¬ 
glican liberty. 

They prevail more or less developed wherever the 
Anglican tribe has spread and formed governments, 
or established distinct polities. Yet, as each of them 
may be carried out with peculiar consistency, or is 
subject to be developed under the influence of addi¬ 
tional circumstances, or as a peculiar character may 
be given to the expansion of the one or the other, it 
is a natural consequence that the system of guaran¬ 
tees which we have called Anglican presents itself 
in various forms. All the broad Anglican princi¬ 
ples, as they have been stated, are necessary to us, 
but there is, nevertheless, that which we can call 
American liberty—a development of Anglican liberty 
peculiar to ourselves. Those features which may, 
perhaps, be called the most characteristic, are given 
in the following chapter. 


referred several propositions relating to a revision of the constitu¬ 
tion. It was the time when the constitutional term of the president 
drew to its end, and the desire of annulling the ineligibility for a 
second term became manifest. It was the feverish time that pre¬ 
ceded the second of December, destined to become another of the 
many commentaries on the facility with which governments founded 
upon centralization are upset, by able conspiracies or terror- 
striking surprises, and how easy it is in such states to obtain an 
acquiescent majority or its semblance, as previously the revolution 
of February had been, when the Orleans dynasty was expelled. 



AND SELF-GOVEENMENT. 


277 


CHAPTER XXII. 

AMERICAN LIBERTY. 


American liberty belongs to the great division of 
Anglican liberty. It is founded upon the checks, 
guarantees and self-government of the Anglican 
tribe. The trial by jury, the representative govern¬ 
ment, the common law, self-taxation, the supremacy 
of the law, publicity, the submission of the army to 
the legislature, and whatever else has been enume¬ 
rated, form part and parcel of our liberty. There 
are, however, features and guarantees, which are pe¬ 
culiar to ourselves, and which, therefore, we may say 
constitute American liberty. They may be summed 
up, perhaps, under these heads: republican federal- * 
ism, strict separation of the state from the church, 
greater equality and acknowledgment of abstract 
rights in the citizen, and a more popular or demo¬ 
cratic cast of the whole polity. 

The Americans do not say that there can be no 
liberty without republicanism, nor do they, indeed, 
believe that wherever a republican or king-less 
government exists, there is liberty. The founders 
of our own independence acknowledged that freedom 
can exist under a monarchical government, in the 
very act of their declaration of independence. 

VOL. I.—24 


278 


ON CIVIL LIBERTY 


Tlirougliout that instrument the Americans are 
spoken of as freemen whose rights and liberties 
England had unwarrantably invaded. It rests all 
its assertions and all the claimed rights on the 
liberty that had been enjoyed, and after a long re¬ 
cital of deeds of misrule ascribed to the king, it 
says: “A prince, whose character is thus marked 
by every act which may define a tyrant, is unfit to 
be the ruler of a free people.” It broadly admits, 
therefore, that a free people may have a monarch, 
and that the Americans were, and considered them¬ 
selves a free people before they claimed to form a 
separate nation. 

Nevertheless, it will be denied by no one that the 
Americans believe that to be the happiest political 
state of things in which a republican government is 
the fittest; nor that republicanism has thoroughly 
infused itself into all their institutions and views. 
This republicanism, though pronounced at the time 
of the revolution only, had been long, and histori¬ 
cally prepared, by nearly all the institutions and the 
peculiarly fortunate situation of the colonies, or, it 
may be said, that the republican elements of British 
self-government found a peculiarly favorable soil in 
America from the first settlements. 

^ But it is not only republicanism that forms one of 
the prominent features of American liberty, it is re¬ 
presentative republicanism and the principle of con¬ 
federation or federalism,* which must be added, in 


1 Federalism is taken here of course in its philosophical, and not 
in its party sense. 



AND SELF-GOVERNMENT. 


279 


order to express this principle correctly. We do 
not only consider the representative principle neces¬ 
sary in all onr states in their unitary character, but 
the framers of our constitution boldly conceived a 
federal republic, or the application of the representa¬ 
tive principle with its two houses to a confederacy. 
It was the first instance in history. The Nether¬ 
lands, which served our forefathers as models in 
many respects, even in the name bestowed on our 
confederacy, furnished them with no example for this 
great conception. It is the chief American contribu¬ 
tion to the common treasures of political civilization. 
It is that by which America will chiefiy influence 
other parts of the world. Already are voices heard 
in Australia for a representative federal republic like 
ours. Switzerland, so far as she has of late reformed 
her federal constitution, has done so in avowed imi¬ 
tation of the federal pact of our Union. I consider 
the mixture of wisdom and daring, shown in the 
framing of our constitution, as one of the most re¬ 
markable, and one of the rarest in all history. 

Of the strict separation of the church from the 
state, in all the federated states, I have spoken al¬ 
ready. The Americans consider it as a legitimate 
fruit of the liberty of conscience. They believe that 
the contrary would lead to disastrous consequences ^ 
with reference to religion itself, and it is undeniable 
that another state of things could not by possibility 
have been established here. We believe, moreover, 
that the great mission which this country has to 
perform, with reference to Europe, requires this total 


280 


ON CIVIL LIBERTY 


. divorce of state and church (not religion).^ Doubt¬ 
less this unstinted liberty leads to occasional incon¬ 
venience ; even the multiplicity of sects itself is not 
free from some evils; but how would it be if this 
divorce did not exist ? The Americans cling with 
peculiar fervor to this very principle. We carry 
the principle of political equality much farther than 
any free nation. We had no colonial nobility, al 
though some idea of establishing it was entertained 
in England when the revolution broke out, and the 
framers of the constitution took care to forbid every 
state and the United States collectively, from esta¬ 
blishing any nobility. Even the establishment of the 
innocent Cincinnati Society gave umbrage to many.^ 

2 I lately saw a pamphlet written by an American minister in 
which the constitution of the United States was called atheistical 
—an expression I have seen before. I do not pretend exactly to 
understand its meaning. I suppose, however, that the word athe¬ 
istical is taken in this case as purely negative and as equivalent to 
non-mentioning God, not, of course, as equivalent to reviling the 
deity. Even in this more moderate sense, however, the expression 
seems to me surprising. There was a time when every treaty, nay 
every bill of lading began with the words. In the name of the Holy 
Trinity, and every physician put the alpha and omega at the top of 
his recipe. Whatever the sources may have been from which 
these usages sprang, I believe it will be admitted that the modern 
usage is preferable, and that it does not necessarily indicate a di¬ 
minished zeal. The most religious among the framers may not 
have thought of placing the name of God at the head of our con¬ 
stitution for the very reason that God was before their eyes, and 
that this occasion did not suggest to them the idea of specially ex¬ 
pressing their belief. Nec deus intersit nisi dignus vindice nodus. 

^ In Europe, where an accurate knowledge of the American state 
of things did not exist, it was, I believe, universally considered as 
the beginning of a new nobility, and pointed out as a glaring in¬ 
consistency. 



AND SELF-GOVERNMENT. 


281 


We have no right of primogeniture.'* This equality 
has more and more developed itself, and all states 
I believe have adopted the principle of universal 
suffrage. Property qualification for voting or for 
being elected does not exist any longer. 

But here it must be observed that, however un¬ 
qualifiedly the principle of political equality is 
adopted throughout the whole country with reference 
to the white population, it stops short with the race. 
Property is not allowed to establish any difference, 
but color is. Socially the colored man is denied 
equality in all states, and politically he is so in those 
states in v/hich the free colored man is denied the 
right of voting, and where slavery exists. I believe 
I may state as a fact that the stanchest abolitionist, 
who insists upon immediate manumission of all 
slaves, does not likewise insist upon an immediate 
admission of all the manumitted population to a 
perfect political equality. In this, however, I may 
be mistaken. 

Two elements constitute all human progress, his-, ^ 
torical development and abstract reasoning. It results 
from the very nature of man, whom God has made 
an individual and a social being. His historical 
development results from the continuity of society.^ 

We can do entirely without it as to property in land. Our abund¬ 
ance of land does not require it; but there are countries in which 
the constant parcelling of land led to such a ruinous subdivision 
that the governments were obliged to establish a minimum beyond 
which land shall not be allowed to be divided, and which, thus un¬ 
divided, goes either tp the oldest or the youngest of the sons. 

^ This is treated more fully in the Political Ethics. 

24 * 



282 


ON CIVIL LIBERTY 


Witliont it, without traditional knowledge and insti¬ 
tutions, without education, man would no longer be 
man; without individual reasoning, without bold 
abstraction, there would be no advancement either. 
Kow, single men, entire societies, whole periods will 
incline more to the one or to the other element, and 
both present themselves occasionally in individuals 
and entire epochs as caricatures. One-sidedness is to 
be shunned in this as in all other cases; perfection, 
wisdom, results from the well-balanced conjunction 
of both, and I do not know any nobler instance of 
this wisdom than that which is presented by the men 
of our revolution. They were bold men, as I have 
stated already; they went fearlessly to work, and 
launched upon a sea that had as yet been little navi¬ 
gated, when they proposed to themselves the esta¬ 
blishment of a republic for a large country. Yet 
they changed only what imperatively required 
change; what they retained constituted an infinitely 
greater part than what they changed. It does not 
require an extraordinary power of abstraction, nor 
very profound knowledge, to imagine what must 
have been the consequence, had they upset the 
whole system in which they lived, and allowed their 
ill-will toward England, or a puerile vanity, to in¬ 
duce them to invent an entirely new state of things. 

They, on the contrary, adopted every principle and 
institution of liberty that had been elaborated by the 
English. They acted like the legislators of antiquity. 
Had they done otherwise, their constitution must 
have proved a still-born child, as so many other con¬ 
stitutions proclaimed since their days. Their absence 


AND SELF-GOVERNMENT. 


283 


of all conceit, and their manly calitiness, will forever 
redound to their honor. 

It seems to me that while the English incline 
occasionally too much to the historical element, we, 
in turn, incline occasionally too much toward ab¬ 
straction. 

However this may be, it is certain that we conceive 
of the rights of the citizen more in the abstract and 
more as attributes of his humanity. From this fact 
several features characteristic of our liberty naturally 
flow. 

I have also stated that our whole government has 
a more popular cast than that of England, and with 
reference to this fact, as well as to the one mentioned 
immediately before it, I would point out the fol¬ 
lowing farther characteristics of American liberty. 

We have established everywhere voting by ballot. ^ 
There is an annually increasing number of members 
voting in the English commons for the ballot. It is 
desired there to prevent intimidation. Probably it 
would have that efiect in England, but certainly not in 
such a degree as they expect it. The ballot does not 
necessarily prevent the vote of a person from being 
known.® Although the ballot is so strongly insisted 


6 There is an instructive article on voting in the Edinburgh Re¬ 
view, of October, 1852, on Representative Reform. The writer, who 
justly thinks it all-important that every one who has the right to 
vote for a member of parliament should vote, proposes written votes 
to be left at the house of every voter, the blanks to be filled by him, 
as is now actually done for parish elections. There existed written 
votes in the early times of New England, and people were fined for 
not sending them. It was not necessary to carry it personally to 



284 


ON CIVIL LIBEETY 


upon in America,^it is occasionally entirely lost sight 
of. “ Tickets” printed on paper whose color indicates 
the party which has issued it, are the most common 
things; and, in the place of my residence, it happened 
some years ago that party feeling ran to an unusual 
height, so much so that, in order to prevent melan¬ 
choly consequences, the leaders came to an agree¬ 
ment. It consisted in this: that alternate hours 
should be assigned to the two parties, during which 
the citizens of one party only should vote. This 
open defeat of the ballot was carried out readily and 
in good faith. 

The constitution of the United States, and those of 
all the states, provide that the houses of the legis¬ 
latures shall keep their journals, and that on the 
demand of a certain, not very large, number of 
members, the ayes and noes shall be recorded. The 
ayes and noes have sometimes a remarkable effect. 
It is recorded of Philip the Fourth, of Spain,^ that he 
asked the opinion of his council on a certain subject. 
The opinion was unanimously adverse, whereupon the 
monarch ordered every counsellor to send in his vote 
signed with his name, and every vote turned out to 
be in favor of the proposed measure. The ayes and 
noes have unfortunately sometimes a similar effect 
with us. Still, this peculiar voting may operate upon 
the fearful as often beneficially as otherwise; at any 

the poll. These written votes prevailed in the middle ages. For 
this and other subjects connected with elections, see the paper on 
the subject in the appendix. 

7 Coxe’s Memoirs of the Bourbons in Spain. 



AND SELF-GOVERNMENT. 


285 


rate, tlie Americans believe tliat it is proper thus to 
oblige members to make their vote kno^vn to the * 
people. 

We never give the executive the right of dissolving 
the legislature. 

We have never closed the list of the states com¬ 
posing the Union, in which we differ from most other 
confederacies, ancient or modern; we admit freely 
those who are foreigners by birth to our citizenship, ‘ 
and we do not believe in inalienable allegiance.® 

We allow, as it has been seen already, no attainder 
of blood. 

We allow no ex post facto laws. 

American liberty contains as one of its character¬ 
istic elements the enacted or written constitution. ‘ 
This feature distinguishes it especially from the Eng¬ 
lish polity with its accumulative constitution. 

We do not allow our legislatures to be politically ^ 
“omnipotent,” as, theoretically at least, the British 
parliament is.® 


® The character of the English, and of our allegiance, is treated 
at length in the Political Ethics. I there took the ground that even 
English allegiance is a national one, whatever the language of the 
law books may be to the contrary. The following may serve as a 
farther proof that English allegiance, after all, is dissoluble. It 
appears from the New England charter, granted by James I., that 
he claimed, or had, the right “ to put a person out of his allegiance 
and protection.” Page 16, Compact, with the Charter and Laws of 
the Colony of New Plymouth, &c., Boston, 1836. 

9 For the English reader I would add that the following works 
ought to be studied, or consulted on this subject: The Constitution 
of the United States, and the constitutions of the different states, 
which are published from time to time, collected in one volume; 



286 


ON CIVIL LIBERTY 


I may add perliaps, as a feature of American 
liberty, that the American impeachment is, as I have 
stated before, a political, and not a penal institution. 
It seems to me that I am borne out in this view by 
the Federalist.^® 


the Debates on the Federal Constitution; The Federalist, by Ham¬ 
ilton, Madison, and Jay; the Writings of Chief Justice Marshall, 
Boston, 1839 ; Mr. Justice Story’s Commentaries on the Constitu¬ 
tion of the United States ; Mr. Calhoun’s and Mr, Webster’s Works; 
Mr. Rawle’s work on the Constitution, and Mr. Frederic Grimke’s 
Considerations upon the Natui'e and Tendency of Free Institutions, 
Cincinnati, 1848. 

No. LXV. 




AND SELF-GOVEKNMENT. 


287 


CHAPTER XXII. 

IN WHAT CIVIL LIBERTY CONSISTS, PROVED BY 
CONTRARIES. 

I HAVE endeavored to give a sketch of Anglican 
liberty. It is the liberty we prize and love for, a 
hundred reasons, and which we would love if there 
were no other reason than that it w liberty. We 
know that it is the political state most befitting to 
conscious man, and history as well as our own preg¬ 
nant times proves to us the value of those guarantees; 
their necessity, if we wish to see our political dignity 
secure, and their effect upon the stability of govern¬ 
ment as well as on the energies of the people. We 
are proud of our self-government and our love of the 
law as our master, and we cling the faster to all these 
ancient and modern guarantees, the more we observe 
that, wherever the task which men have proposed 
to themselves is the suppression of liberty, these 
guarantees are sure to be the first objects of deter¬ 
mined and persevering attack. It is instructive for 
the friend of freedom to observe how uniformly and 
instinctively the despots of all ages and countries 
have been in their attacks upon the different gua¬ 
rantees enumerated in the preceding pages. We can 


288 


ON CIVIL LIBERTY 


learn much in all practical matters by the rule of 
contraries. As the arithmetician proves his multi¬ 
plication by division, and his subtraction by addi¬ 
tion, so may we learn what those who love liberty 
ought to prize, by observing what those who hate 
freedom suppress or war against. This process is 
made peculiarly easy as well as interesting at this 
very period, when the government of a large nation is 
avowedly engaged in suppressing all liberty and in 
establishing the most uncompromising monarchical 
absolutism. 

I do not know a single guarantee contained in the 
foregoing pages, which might not be accompanied by 
a long historical commentary showing how necessary 
it is, from the fact that it has been attacked by those 
who are plainly and universally acknowledged as hav¬ 
ing oppressed liberty or as having been, at least, guilty 
of the inchoate crime. It is a useful way to turn 
the study of history to account, especially for the 
youth of free nations. It turns their general ardor 
to distinct realities, and furnishes the student with 
confirmations by facts. We ought always to remem¬ 
ber that one of the most efficient modes of learning 
the healthful state of our body and the salutary ope¬ 
ration of its various organs, is the study of their dis¬ 
eased states and abnormal conditions. The pathologic 
method is an indispensable one in all philosophy and 
in politics. The imperial time of Eome is as replete 
with pathetic lessons for the statesman as the repub¬ 
lican epoch. 

It would lead me far beyond the proper limits of 
this work, were I to select all the most noted periods 


AND SELF-GOVERNMENT. 


289 


of usurpation, or those times in which absolutism, 
whether monarchical or democratic, has assumed the 
sway over liberty, and thus to try the gage of our 
guarantees. It may be well, however, to select a few 
instances. 

In doing so I shall restrict myself to instances 
taken from the transactions of modern nations 
of our own race; but the student will do well to 
compare the bulk of our liberty with the charac¬ 
teristics of ancient and modern despotism in Asia, 
and see how the absence of our safeguards has 
there always prevented the development of humanity 
which we prize so highly. He ought then to com¬ 
pare this our own modern liberty with what is more 
particularly called antiquity, and see in what we 
excel the ancients or fall behind them, and in Avhat 
that which they revered as liberty differed from 
ours. He ought to keep in mind our guarantees in 
reading the history of former free states and of the 
processes by which they lost their liberty, or of the 
means to which the enemies of liberty have resorted, 
from those so masterly delineated by Aristotle down 
to Dr. Francia and those of our own times, and he 
ought again to compare our broadcast national liberty 
to the liberties of the feudal age. He ought lastly to 
present clearly to his mind the psychologic processes 
by which liberty has been lost—by gratitude, hero- 
worship, indolence, permitting great personal popu¬ 
larity to overshadow institutions and laws, hatred 
against opposite parties or classes, denial of proper ^ 
power to government, the arrogation of more and 
more power, and the gradual transition into abso- 
VOL. I.— 25 


290 


ON CIVIL LIBEKTY 


liitism; by local jealousies, by love of glory and 
conquest, by passing unwise laws against a magni¬ 
fied and irritating evil, whicb afterwards serve to 
oppress all, by reeoiling oppression of a part, by 
poverty and by worthless use of wealth, by sensu¬ 
ality and want of general virtue. 

It may not be amiss to single out the following 
cases. 

Liberty of eommunion is one of the first requisites 
of freedom. Wherever, therefore, a government 
struggles against liberty, this communion forms a 
subject of peculiar attention. Not only is liberty of 
the press abolished, but all communion is watched 
over by the power-holder, or suppressed as far as 
possible. The spy, the mouehard, the dilater, the 
informer, the sycophant, are sure aeeompaniments 
of absolutism.^ The British administration under 
Charles the Second and James the Second looked 
with a jealous eye on the “ eoffee-houses,” and oeca- 
sionally suppressed them, and one of the first things 
done by the Breneh minister of police, after the' 
second of December, was to close a number of 
“eabarets” at Paris, and to put all throughout 
France under surveillanee. This may beeome neees- 
sary under pressing eircumstances, which may place 
a government in the position of a general in a 
beleaguered city. All that is necessary to state here 
is that it is not liberty, but the eontrary, and that if 
the measure is adopted as a permanent one, it is 

* Much that relates to the history of the spy and informer, in 
ancient and modern times, may be found in the second volume of 
Political Ethics, where the citiiiieu’s duty of informing is discussed. 



AND SELF-GOVEENMENT. 


291 


sheer despotism. So soon as Lonis ISTapoleon had 
placed himself at the head of an absolute govern¬ 
ment, he not only abolished the liberty of the press; 
he went much farther, as we have seen; he placed the 
printing presses themselves and the sale of type 
under the police, and ordered that no press with the 
necessary printing materials should be sold or change 
hands without previous information being given 
to the police. 

While it is a characteristic of our liberty that the 
public funds are under the peculiar guardianship of 
the popular house of the legislature, and that short 
appropriations are made for distinct purposes, espe¬ 
cially for the army and navy, all governments hostile 
to liberty endeavor to rule without appropriations, or, 
if this is not feasible, by having the appropriations 
made for a long term, and not for detailed purposes. 
The last decree of ISTapoleon the Third, relating to 
this subject, is that the legislative corps must vote 
the budget of each ministry en hhc^ that is in a 
lump, and either wholly reject or adopt it, without 
amendment. English history furnishes a long com¬ 
mentary on this point of appropriations. Charles 
the First lost his head in his struggle for a govern¬ 
ment without parliament, which then meant, in a 
great measure, without regular appropriations, or the 
assumption of ruling by taxation on royal authority. 
Wherever on the European continent an endeavor 
has been shown to establish a constitutional govern¬ 
ment, the absolutists have complained of the inde¬ 
cency” of making a government annually “ beg” for 
supplies. 


292 


ON CIVIL LIBEETY 


Liberty requires the supremacy of the law; the 
supremacy of tlie law requires tbe subordination of 
tbe army to tbe legislature and the whole civil 
government. The Declaration of Eights enumerates, 
as one of the proofs that James the Second had 
endeavored “ to subvert and extirpate the laws and 
liberties” of England, his raising and keeping a 
standing army without consent of parliament, while 
all governments reluctantly yielding to the demands 
of liberty have struggled to prevent at least the 
obligation of the army to take the oath of fidelity 
to the constitution. The army is studiously sepa¬ 
rated from the people and courted as peculiarly allied 
to the prince. Napoleon the First treated the army 
as the church was often treated in the middle ages— 
the main body in the state; and Napoleon the Third 
lately said in a solemn speech that he desired to 
present the new empress to the people and the army, 
as if it formed at least one-half of the state and were 
separate from the people. When he gave eagles to 
the whole army at what is called the fete of the 
eagles, in 1852, he said: “ The history of nations is 
in great part the history of armies,” and continued in 
a strain sounding as if it belonged to the times of 
the migration of nations.^ 

2 I quote the whole passage of this stupendous allocution, which 
no historian or political philosopher, had he discovered it, as Cuvier 
found and construed remains of animals, would have assigned to 
the middle of the nineteenth century. What becomes of England 
and the United States if the essence of history does not lie in the 
development of the nation and especially of its institutions ? The 
following arc the exact words: 



AND SELF-GOVEENMENT. 


293 


The supremacy of the law is an elementary requi¬ 
site of liberty. All absolutism spurns the idea, and 
has a peculiar dislike of the idea of fundamental 
laws. Aristotle enumerates as the fourth species of 
government that in which the law is not the supreme 
master, but the multitude; James the Second claimed 
and acted on the dispensing power, and Louis Napo¬ 
leon declared, when yet president under the repub¬ 
lican constitution, which prohibited his re-election, 
that if the people wanted him to continue in office, 
he should do it, and all his adherents declared that 
the people being the masters could do as they 
liked, which reminds us of the Athenians who im¬ 
patiently exclaimed: “Can we not do what we list?” 
when reminded that there was a law against what 
they were going to do. 

The division of power, which was already observed 
as an important point in all government by “the 
master of all that know,” is invariably broken down 
as far as possible by the absolutists. The judiciary 
is interfered with whenever its slow procedure or its 
probable results irritate the power-holder. The his¬ 
tory of all nations from the earliest times to Napo- 

“ Soldiers, the history of nations is in great part the history of 
armies. On their success, or on their reverses, depends the fate of 
civilization and of country. When they are vanquished, there is 
either invasion or anarchy; when victorious, glory or order. 

“In consequence, nations, like armies, pay a religious veneration 
to the emblems of military honor, which sum up in themselves a 
whole past existence of struggles and of triumphs. 

“ The Roman eagle, adopted by the Emperor Napoleon at the 
commencement of the present century, was the most striking signi¬ 
fication of the regeneration and grandeur of Franceand so on. 

25 ^ 



294 


ON CIVIL LIBERTY 


Icon tlie Third’s taking the trial on the legality of 
the Orleans’ spoliation out of the hands of the ju¬ 
diciary, proves it on every page. 

Self-government, general as well as local, is indis¬ 
pensable to our liberty, but interference and dicta- 
'tion are the essence of absolutism. Monarchical ab¬ 
solutisms presume to do everything and to provide 
for everything, and Eobespierre, in his “ great 
speech” for the restoration of the, supreme being, 
said: The function of government is to direct the 
moral and physical forces of the nation. For this 
purpose the aim of a constitutional government is 
the republic.^ 

Liberty requires that every one should be judged 
by his common court. All despots insist on extra¬ 
ordinary courts, courts of commission, and an easy 
application of martial law. 

Forcible expatriation or deportation “ beyond the 
seas” by the executive is looked upon with peculiar 
horror by all freemen. The English were roused by it 
to resistance; bTapoleon the Third began his absolute 
reign with exile and deportation. So did the Greek 
factions, because no “ opposition” was known, inva¬ 
riably banish their opponents when they had the 
power of doing so. AVith them it was the bungling 
business of factions; moderns know better, and if 
they return to it, it is because despotism is a thing 
full of fear and love of show. 

How great an offence it is to deprive a man of his 

3 The words of Robespierre are perfectly clear as an illustration 
of what has been stated in the text; otherwise, I own, the sense is 
not perfectly apparent. 



AND SELF-GOVEENMENT. 


295 


lawful court and to judge liim by aught else than by 
the laws of the land, now in the middle of the nine¬ 
teenth century, will appear the more forcibly, if the 
reader will bring to his mind that passage of Magna 
Charta ^hich appeared to Chatham worth all the 
classics, and if he will remember the year when the 
Great Charter was carried. The passage, so preg¬ 
nant to the mind of Chatham, is this: 

“ ISTo freeman shall be taken, or imprisoned, or be 
disseised of his freehold or liberties, or free customs, 
or be outlawed or exiled, or any otherwise destroyed; 
nor will we (the king) pass upon him, nor condemn 
him, but by lawful judgment of his peers, or by the 
law of the land. We will sell to no man, we will 
not deny or defer to any man, justice or right.” 

Publicity is a condition without which liberty 
cannot live. The moment it had been concluded by 
the present government of France to root out civil 
freedom, it was ordained that neither the remarks of 
the members of the legislative corps, nor the plead-’ 
ings in the courts of justice, should be reported in 
the papers. Modern political publicity, however, 
consists chiefly in publication through the papers. 
We acknowledge this practically by the fact that, 
although our courts are never closed,^ yet, for par¬ 
ticular reasons arising out of the case under consi¬ 
deration, the publication of the proceedings is some¬ 
times prohibited by the judge until the close of the 
trial, but never beyond it. 

Very scandalous judicial cases, offensive to public morals, 
are, in France, conducted with closed doors. 



296 


ON CIVIL LIBERTY 


Liberty stands in need of tlie legal precedent, and 
Charles the First pursued Cotton because be fur¬ 
nished Pym and other patriots with precedents, while 
the present French government has excluded in¬ 
struction in history from the plan of general educa¬ 
tion. History, in a certain point of view, may be 
called the great precedent. History is of all branches 
the most nourishing for public life and liberty. It 
furnishes a strong pabulum and incites by great ex¬ 
amples removed beyond all party or selfish views. 
The favorite book of Chatham was Plutarch, and his 
son educated himself upon Thucydides.^ The best 
historians have been produced by liberty, and the 
despot is consistent when he wishes to shackle the 
noble muse. 

Sincere civil liberty requires that the legislature 
should have the initiative. All governments reluctant 
to grant full liberty have withheld it, and one of the 
first things decreed by Louis Hapoleon after the 
second of December was that the “ legislative corps” 
should discuss such propositions of laws only as the 
council of state should send to it. The council of 
state, however, is a mere body of officers appointed 
and discharged at the will of the ruler. 

Liberty requires that government do not form a 
body permanently and essentially separated from the 
people; all modern absolute rulers have resorted to 
a number of distinctions—titles, ribbons, orders, pea¬ 
cock feathers and buttons, uniforms, or whatever other 


s So bisliop Tomlinson tells us in the Life of his pupil. 



AND SELF-GOVEENMENT. 297 

means of separating individuals from tlie people at 
large may seem expedient. 

Liberty requires the trial by jury. Consequently 
one of tbe first attacks wbicb arbitrary power makes 
upon freedom is regularly directed against that trial. 
There is- now a law in preparation in France, of 
which the outlines have been published, and which 
will place the jurors under the almost exclusive in¬ 
fluence of the government. 

Liberty requires, as we have seen, a candid and 
well-guaranteed trial for treason; all despotic govern¬ 
ments, on the contrary, endeavor to break down these 
guarantees in particular, and either to arrogate the 
poAver of condemning political offenders without trial, 
or at least to strip the trial for treason of its best 
guarantees. 

But we might go through the Avhole list of safe¬ 
guards and principles of liberty, and find that in each 
case absolutism does the opposite. 

If the American peruses the Declaration of Inde¬ 
pendence, he will find there, in the complaints of our 
forefathers, almost a complete list of those rights, 
privileges and guarantees which they held dearest 
and most essential to liberty; for they believed that 
nearly every guarantee had been assailed. 


298 


ON CIVIL LIBERTY 


CHAPTEE XXIII. 

GALLICAN LIBERTY. SPREADING OF LIBERTY. 

Having considered Anglican liberty, it will be 
proper for ns to examine the French type of civil 
freedom, or Galilean liberty. 

In speaking here of Galilean liberty, we mean, of 
course, that liberty which, either in reality, if we 
shall find that at any period it has taken actual root, 
or in theory, if it have remained such, and never prac¬ 
tically developed itself, is characteristically French. 
Liberty has sprouted in France as in other coun¬ 
tries. People have felt there, as all over Europe, 
that the administration of justice ought to be inde¬ 
pendent of the other branches of government. The 
separation of the three great functions of government 
was proclaimed by the first constituent assembly. 
But the question here is, whether any of these or 
other endeavors to establish liberty have been con¬ 
solidated into permanent institutions, whether they 
have been allowed to develop themselves, and whether 
they were or are peculiar to the Gallican tribe, or 
were adopted from another system of developed 
civil liberty, as we adopt the whole or parts of an 
order of architecture or a philosophical system; and 


AND SELF-GOVEENMENT. 


299 


if we find no sucli institutions or guarantees pecu¬ 
liar to the French, whether there be a general idea 
and conception of liberty which pervades all France 
and is peculiar to that country. 

In viewing the French institutions, which have 
been intended for the protection of individual rights 
or the preservation of liberty, I can discover none 
which has had a permanent existence, except the 
court of cassation or quashing. It is the highest 
court of France, possessing the power of annulling^ 
or breaking* the judgments of all other courts of 
justice, whether in civil or criminal matters, on 
account of faults and flaws in the judicial forms and 
procedure, or of misapplications of the existing law. 
It has no power to examine the verdict. It resembles, 
therefore, the court of Westminster, in England, when 
the assembled judges hear questions of law, or our 
supreme court of the United States on similar occa¬ 
sions, and the supreme courts or courts of appeal or 
error in the different states. The court of cassation 
must necessarily sometimes judge of certain proce¬ 
dures of the government against individuals, and 
declare whether individual rights, publicly gua¬ 
ranteed, have been invaded. Thus it showed its 
power to some extent when Paris was declared in a 
state of siege, and the whole city was under martial 
law. But the high attribute of pronouncing upon^ 
the constitutionality of the laws themselves, which 
we revere in our supreme courts, does not belong to 
it, nor can its power be vigorously and broadly 


* Gasser is the French for breaking; hence the name of the court. 



800 


ON CIVIL LIBERTY 


exercised in a conflict with the supreme power, since 
this power bears down everything in a country so 
vast and yet so centralized as France is, and in which 
the principle of development, independent of the 
executive or central power, is not acknowledged in 
the different institutions. The court of cassation has 
at the same time a supervisory authority over the 
judges of other courts, and can send them before the 
keeper of the seals (the minister of justice), to give 
an account of their conduct. It is likewise an object 
of the court of cassation to keep the application of 
the law uniform in the different parts of the country. 
This is a necessary effect of its power to quash 
judgments. 

The institution of the justice of the peace ought 
to be mentioned here, although it can only be con¬ 
sidered as indirectly connected with liberty. The 
French justice of the peace differs from the English 
^ officer of the same name in this, that his function is 
exclusively of a conciliatory character. Courts of 
conciliation have existed in many countries, and long 
before the present justices of the peace were esta¬ 
blished in France by the first constituent assembly; 
but as we see them now there, they must be called a 
French institution. It has proved itself in France, 
^as well as in other countries, of the highest value in 
preventing litigation, with all the evils which neces¬ 
sarily attach themselves to it.^ 

2 Courts of conciliation have attracted renewed attention in Eng¬ 
land since lord Brougham’s proposition of an act for the Farther 
Cheapening of Justice, in May, 1851. An instructive article on this 
important subject, and the excellent elfects these courts have pro- 



AND SELF-GOVEENMENT. 


301 


No one, I suppose, would expect the senate, first 
established by Napoleon the First, and then called 
conservative senate, that is the senate whose nominal 
duty it was to conserve the constitution, and now 
re-established by Napoleon the Third, to be enu¬ 
merated as an institution for the support of liberty. 
It has no more connection with liberty than the 
Eoman senate had under the later emperors. Its 
very origin would lead no one to expect in it a gua¬ 
rantee of liberty. On the contrary, the French senate 
has been a great aid to imperial absolutism, by giving 
to comprehensive measures of monarchical despotism 
the semblance of not having originated with the 
absolute monarch, or of having received the counte¬ 
nance of a high and numerous political body. In 
this respect the French senate seems to me worse 
than that of Eussia. The Eussian senate is nothing 
but a council, leaving all power and responsibility 
with the czar, in appearance as well as in reality. 

That which after careful examination must be pro¬ 
nounced to be Gallican liberty, is, I take it, the idea 
of equality founded upon or acting through universal 
suffrage, or, as it is frequently called by the French, 
“the undivided sovereignty of the people” with an* 
uncompromising centralism. As it is necessarily felt 
by many, that the rule of universal suffrage cannot 
practically mean anything else than the rule of the 
majority, liberty is believed in France, as has been^ 
said, to consist in the absolute rule of the majority.^ 


duced in many countries, shown by olhcial statistics, can be found 
in the German Staats-Lexicon, ad verbum Friedensgericht. 

^ I have given my views on the subject of the nature of sovc- 
VOL. I.— 26 



302 


ON CIVIL LIBERTY 


Every one who has steadily followed the discus¬ 
sions of the late constituent and national assemblies, 
who has resolutely gone through the discussions of 
the first constituente^ and studied the history of the 
revolution, and who is fairly acquainted with French 
literature, will agree, I trust, that the idea of Gallican 
liberty has been correctly stated. There are many 
Frenchmen indeed who know that this is not liberty, 
that at most it can only be a means to obtain it, 
but we now speak of the conception of liberty pecu¬ 
liar to the French school. 

Institutions, such as we conceive their necessary 
character to be, that is establishments with the im¬ 
portant element of self-government, and of a system 
of guarantees beyond the reach of daily change, do 
not enter as necessary elements into the idea of Galli¬ 
can liberty. Self-government is sought for in the 
least impeded rule of the majority. It has been 
seen, however, that, according to the Anglican view, 
the question who shall rule is an important question 
of liberty indeed, but only one about the means; for 
if the ruler, whoever he be, deprives the ruled of 
liberty, there is of course no liberty. A suicide does 
not the less cease to live because he kills himself, and 
two game fowls, nearly matched, as the parties in a 
nation may be, do not symbolize liberty, because at 
one time the one may be uppermost, and at another 
time the other. 


reignty and the way it acts, at great length in the first volume of 
the Political Ethics. If I have not succeeded there in mastering 
the subject, I should not be able to do it here; if I have succeeded, 
1 cannot in fairness I'cpeat a long discussion. 




AND SELF-GOVEKNMENT. 


303 


There seems to be in France a constant confusion 
of equality and democracy on the one hand, and of 
democracy and liberty on the other; now, although 
equality largely enters as an element in all liberty, 
and no liberty can be imagined without a democratic 
element, equality and democracy of themselves are 
far from constituting liberty. They may be the 
worst of despotisms: the one by annihilating indi- ^ 
viduality, as the communist strives to do; the other 
—if it means democratic absolutism—by being real 
sweeping power itself—not power lent, as that of the 
monarch always must be—power without personal 
responsibility. It acts; but where is the actor, who 
is responsible, who can be made responsible, who 
will judge? 

It is with reference to this rule, and this mistaken 
view of liberty, that one of their wisest, best, and 
most liberty-loving men, Mr. Eoyer Collard, has 
said;^ “It is nothing but a sovereignty of brute 
force, and a most absolute form of absolute power. 
Before this sovereignty, without rule, without limit, 
without duty and vdthout conscience, there is neither 
constitution nor law, neither good nor evil, nor past 
nor future. The will of to-day annuls that of yester¬ 
day, without engaging that of to-morrow. The pre¬ 
tensions of the most capricious and most extravagant 
tyranny do not go so far, because they are not in 
the same degree disengaged from all responsibility.” 

■Where any one, or any two, or any three, or any 
thousand, or any million can do what they have the 
power to do, there is no liberty. Arbitrary power 


^ Royer Collard’s Opinion of October 4, 1831. 



804 : 


ON CIVIL LIBERTY 


does not become less arbitrary because it is tlie 
united power of many. 

Napoleon said: “ The French love equality; they 
care little for liberty.”^ Napoleon certainly mistook 
the French, and mankind in general, very seriously 
in some points, as all men of his kind do; there are 
some entire instincts wanting in them; but we fear 
that he was right in this saying with reference to a 
large part of the French. Present events seem to 
prove it. 

This equality is again very generally mistaken 
for uniformity, so that it would naturally lead of 
itself to centralization, even if the French had not 
contracted a real passion for centralization ever 
since the reigns of Pichelieu and Louis the Four¬ 
teenth. It has increased with almost every change 
of government. It is the love of poAver carried into 
every detail, and therefore the opposite of Avhat we 
call self-government f it is the exceeding partiality 
of the French for logical neatness and consistency of 

^ AVords spoken to lord Ebrington in his exile on the island of 
Elba. 

® I have given some remarkable instances of interference on the 
part of modern absolute governments, in the Political Ethics. I 
shall add the following recent instance: I am sure that no one 
accustomed to Anglican self-government imagines such details as 
trivial, however well he may be acquainted with the fact in general, 
that government in those countries tries to guide, direct, manage, 
initiate and complete everything that seems of any importance to 
it. Some years ago a German king ironically called, in a throne 
speech, constitutions Paper Providences. The expression was every 
way most unfortunate. It seems to mo that it is these very govern¬ 
ments of centralized mandariuism that play at providence, in which 



AND SELF-GOVERNMENT. 


805 


form, strikingly manifested in tlie fact that the word 
logical is now nniversally nsed in French for consist¬ 
ency of action or natural sequence of changes—it is 
this mathematical enthusiasm, if the expression be 
permitted, applied to the vast field of political practice. 

It seems that we can explain the cry of E^pub- 
lique democratique et sociale, so often repeated by 
the most advanced of the democrats during the late 
government without a king, only on the ground of 
equality being considered the foundation of all 
liberty. Indeed it is considered by many a requisite 

they closely resemble the communists, as indeed all absolutism 
contains a strong element of communism. 

The following is taken from the Paris Moniteur, the French 
official paper, or organ of government, in October, 1852. I do not 
give the entire decree, but the principal articles : 

There will be published, under the care of the minister of public 
instruction, a general collection of the popular poetry of France, 
either to be found in manuscript in the libraries or transmitted by 
the successive memories of generations. 

The collection of the popular poetry of France will consist of: 

Religious and warlike songs. 

Festive songs and ballads. 

Historical recitals, legends, tales, satirical songs. 

The committee of language, history and the arts of France con¬ 
nected with the ministry of public instruction is charged with the 
selection of all pieces sent for inspection, and to determine which 
are to be received, to regulate them, and give the necessary com¬ 
mentaries. 

A medal is to be given to those persons who by their discoveries 
and researches particularly contribute to enrich the collection, 
which will be called Pi,<;cueil des Poesies Populaires. 

It is unnecessary to remind the reader that if this undertaking 
has been dictated by any desire of promoting literature, a political 
motive has been at least equally strong, according to the old say¬ 
ing: Give me the ballad making, and I will rule the pcoi)le. 



306 


ON CIVIL LIBERTY 


wliicli lies beyond liberty, and tbe banners of social¬ 
ists bore tlie motto Equality and Fraternity, or 
Equality, Fraternity, Industry, tbe word Liberty 
having been altogether dropped from that once 
worshipped legend: Liberty, Fraternity, Equality. 
I have never been able to find an explanation of the 
watchword. Democratic and Social Kepublic, given 
by those who used it, but it seems to bear no other 
interpretation than this: Democratic republic sig¬ 
nifies that republic which is founded upon the total 
political equality of its members, carried to its last 
degree, and social republic must mean a republic 
based on equality of social condition. Whether this 
be possible, or desirable if it were possible, cannot 
occupy us at present. The frequent use of this 
term by a very large part of the French nation lias 
been mentioned here as onc'of the evidences show- 
. ing the prevailing love of mere equality among the 
French. 

Still, it is not easy to say what the French exactly 
mean by equality, or what Napoleon meant by it, 
when, at St. Helena, he said that he had given equal¬ 
ity to the French, and that this was all he could 
give them, but that his son would have given them 
liberty. How he knew that his son would have 
done it, we certainly do not know; but how did 
he give them equality, when it was he who re¬ 
established the ancient orders of nobility ? So there 
are, in spite of all the love of equality, no people 
who more universally love uniforms and an order 
with a ribbon, than the French. This inconsistency 
is a political misfortune. In theory, equality and 


AND SELF-GOVEENMENT. 


807 


democracy, carried to the utmost, are demanded, 
while the habits, tendencies, and desires of the peo¬ 
ple have a different bent. There is in this respect, 
it seems, an intellectual and psychical dualism with' 
antagonistic elements in France, similar to that 
which we frequently observe in individuals in re¬ 
gard to liberty and despotism.’’ 

It is evident how nearly allied this desired equal¬ 
ity and uniformity, together with universal but un- 
institutional suffrage, and that kind of sovereignty 
which is in addition confounded with absolute power, 
are to those political extravagances which strike 
our eyes in present France. 

They are the natural effects of the one or the other, 
strictly carried out, however inconsistent they may 
appear with one another. Equality absolutely car¬ 
ried out leads to communism; the idea of undivided 
sovereignty leads to Mr. Girardin’s conception of 
having no legislature, no division of power—nothing 
but a succession of popular sultans; the idea of 

Nothing is more common than men with a decided intellectual 
bent towards freedom and an equally decided psychical inclination 
towards absolutism. Their intellect admires the grandeur of 
liberty, their reason acknowledges the principles of justice; their 
desires are for free action, and yet their souls resent every opposi¬ 
tion. They appear, therefore, often as hypocrites, without being 
such in reality. There- is a dualism within them whose two ele¬ 
ments are at war, very similar to that which, without hypocrisy, 
makes many persons sincerely preach peace and charity abroad, 
but act at home as domestic tyrants. 

History is full of such characters, and we have had an exhibition 
of it in one of our presidents. Happily our institutional system 
did not allow a very wide play of such a disposition. 



808 


ON CIVIL LIBEKTY 


seeking all liberty in universal suffrage alone leads 
witli the greatest ease to a Napoleon—a transfer of 
everything to one man, and of all future generations 
to his descendants, thus actually realizing the fearful 
theory of Hobbes; and the absence of a love of insti¬ 
tutions leads to a remarkable tendency to worship 
one man, to centralization, or, in some cases, to the 
very opposite—a desire to abolish all government, 
and establish the “sovereignty of the individual.” 
All extremes in politics meet. 

There is no greater error than the idea of making 
the vote or election the sole basis of liberty—of be¬ 
lieving that, with the establishment of an extensive 
or universal suffrage, we found liberty, however true 
it is that liberty stands in need of election. Abso- 
’ lutism may rest on this as on any other basis. The 
deys of Algiers were elective, but once elected they 
were unbounded masters, in the Oriental sense of the 
term. The generals of nearly all, I believe of all, 
the monastic orders are elective, but, once elected, 
the vow of obedience of every monk, and the distinct 
renunciation of liberty, make him master. No order, 
no human association has carried the doctrine of 
absolute obedience to a more frightful extent than 
the Jesuits, whose founder demands that the inferior 
shall be in the hands of the superior ut baculum, 
like a mere staff, and whose distinctly expressed 
principle it is that every command of the superior 
shall be like a commandment from on high, even 
though sin be commanded. Yet the government of 
the order is founded on election. Mr. Guizot, in 


AND SELF-GOVEKNMENT. 


809 


speaking of the monastic orders,® says: “ As regards 
the political code of the monasteries, the rule of St. 
Benedict offers a singular mixture of despotism and 
liberty. Passive obedience is its fundamental prin¬ 
ciple ; at the same time the government is elective; 
the abbot is always chosen by the brothers. When 
once the choice is made, they lose all liberty, they 
fall under the absolute domination of their superior. 
Moreover, in imposing obedience on the monks, the 
rule orders that the abbot consult them. Chap. III. 
expressly says, ‘ Whenever anything of importance 
is to take place in the monastery, let the abbot con¬ 
voke 'the whole congregation, and say what the ques¬ 
tion is; and after having heard the advice of the 
brothers, he shall think of it apart, and shall do as 
appears to him most suitable.’ Thus, in this singu¬ 
lar government, election, deliberation, and absolute 
power, were coexistent.” The pope is an elective 
monarch over the States of the Church. No one has 
ever maintained that on this account liberty had a 
home in that country. Nor would the case be 
altered if the pope were elected, not by the college 
of cardinals, but by a more numerous body of elec¬ 
tors, or by all male adults, or even by the whole 
population, male and female. The high priest or 
president in the polity of that stupendous outrage 
called Mormonism, is elective, and the Mormons ^ 
themselves call their, government a theo-demo- 
cracy;® yet a greater absolutism has never ex- 


8 History of Civilization, chapter XIV. 

® Theo-ilemocracy does not contain a contradiction, however 



310 


ON CIVIL LIBEETY 


isted, indeed, we may fairly say, none eqnal to it. It 
. unites democraey and communism, wliicli is abso- 
^ lutism, with continuous and permanent revelations of 
tire' deity, not only on dogmatic points, but on every 
measure of weight. It is a jus divinum such as the 
ancients did not even dream of when they derived 
their kings from the loins of the gods, and it is a 
communism such as Mohammed never dared to em¬ 
body in his politico-religious system. 

As a feature ok Gallican liberty must be mentioned 
here the unicameral system, because it seems to be 
held by all those persons who seem to be the most dis¬ 
tinct enunciators of this species of liberty, a necessary 
requisite, if they allow the principle of representation 
at all. They consider that the bicameral system of 
representatives is aristocratic, or else, as one of their 
writers expresses it, that two houses can never be 
reconciled except by money or by blood. The love 
of a legislature of one house is a necessary conse¬ 
quence of the French idea of unity in the govern- 

novel, and, at first sight, startling the term may appear to us. If 
democracy necessarily expressed the idea of liberty, then, indeed, 
the name theo-democracy would be senseless, for all theocracy or 
sacerdotal rule is a negation of civil liberty. It immures in 
dogma. 

In a similar manner, and with equal justice, does the missionary 
I. Payne say of the Grebo tribe, at Capo Palmas, that their consti¬ 
tution is patriarchal, with a purely democratic government. Ilis 
account is contained in “ The Eeport of the Ecv. R. R. Gurley, who 
was recently sent out by the government to obtain information in 
respect to Liberia,” published by the Senate of the United States, 
in 1850, 31st Congress, 1st Session, Executive Document, No. 75. 
The political philosopher can hardly read a more interesting paper 
than this. 



AND SELF-GOVERNMENT. 


811 


ment or the unity of the state, which does not only 
mean a unitary state, and actual abhorrence of con¬ 
federacies, but a compact system of centralization. 

The Anglican wants union in his general govern¬ 
ment ; the Galilean, unity. lie wants his govern¬ 
ment to be a solid unit.^® He wishes to deprive 
every institution, as much as possible, of the princi¬ 
ple of self-government and independence, and the 
only question which remains is, who shall be the ruler 
and receive that power which government gives? 
To this subject as to many others on which I have 

The extent to which this idea is occasionally carried out is al¬ 
most inconceivable to us, accustomed as we are to so essentially 
dilferent a system and train of political thoughts. A few years 
ago the minister of the interior had given some new directions re¬ 
garding the quarantine regulations. They were more in conformity 
with the opinions of scientific men on the contagiousness of the 
plague. The people of Marseilles, who still keep the terrible 
plague of last century in vivid remembrance, disapproved of these 
orders from the central government, and a meeting of certain per¬ 
sons was called together. Whereupon most newspapers took part 
with the government, and charged the citizens, with whom this little 
germ of self-government had shown itself, with the hideous sin of 
federalism, the crime for Avhich many had lost their heads in the 
first revolution. This was in the times of the so-called republic 
before the 2d of December, and the few papers which took side 
with the citizens were legitimist papers, thus furnishing by the way 
another instance of the fact that all sorts of things are possible 
under peculiar circumstances. It was the tories who resisted Wbil- 
pole’s septennial bill abolishing triennial parliaments ; it was the 
Jesuits who first enunciated the doctrine of the sovereignty of the 
people in order to get a fulcrum against heretical monarchs; it was 
a Spanish Jesuit who defended regicide under Philip II. ; and here 
we have legitimists, working for a descendant of Louis the Four¬ 
teenth who took side for a principle of self-action against the cen¬ 
tral government! 



812 


ON CIVIL LIBERTY 


touclied, we shall return when I shall treat more 
fully of the institutional government and its oppo¬ 
site. 

It is not likely that people who speak with deri¬ 
sion of parliamentary government, which nothing 
is meant but a government in which a deliberative 
and representative legislature forms an integral part, 
and of “ parlementarism” as the new phrase is, would 
treat the legislature as an institution with self-govern¬ 
ment and a necessary degree of independence. Ac¬ 
cording to their idea, the safeguards which we believe 
are found in a mutually moderative contrivance ought 
to be done away with. Speedy energy, absence of 
' opposition, no results which are the products of mu¬ 
tual modification, unity of ideas, not consisting in 
collective results but in a merely logical carrying 
‘out of some abstract principle; these are the main 
objects, according to Gallican views. 

The Spaniards, the Portuguese, the Neapolitans 
have made the trial of imitating the French, but 
have succeeded with the system of one house no 
better than the French themselves, and have passed 
over to the bicameral legislature. 

There are states in which the medieval principle 
of estates still exists. But it may be fairly said that 
this is a remnant of the middle ages, at variance with 
the totally changed state of modern society. No¬ 
where do they present themselves as a system of 
civil liberty—it is rather a system (and rarely even 
that) of privileges or liberties. In Sweden the estates 
still exist, namely four—the clergy, nobility, citizens, 
and peasants, and a high degree of liberty is enjoyed. 


AND SELF-GOVERNMENT. 


313 


But in examining tlie constitution of Sweden we 
cannot fail to observe that modern liberty is rather 
superinduced or engrafted on the system of states, 
than evolved out of it. The constitution of Norway 
on the other hand is clearly of the character of that 
liberty which we have designated as Anglican. 

I believe that Frenchmen would point out their 
national guards as an element or guarantee of Galil¬ 
ean liberty. They were established during the first 
revolution, and have always been diminished in 
number and restricted in power, in those periods in 
which the government made war upon liberty. They 
cannot, however, be considered a valid guarantee 
in so concentrated a government as the French is, 
and in a country in which the army is so gigantic. 

It must have plainly appeared that liberty seems 
to me efficiently secured only by the Anglican sys-* 
tern. Other attempts in modern times have been but 
very partially successful, and of these there are but 
few. The question arises at once, are those persons 
in the main correct who roundly assert that no people 
are fit for liberty except the Anglo-Saxon? For 
thus they call the English nation, and those who have 
descended from it. Or is it correct to say that who¬ 
ever wishes to enjoy liberty must copy the main 
institutions of Anglican liberty? On these and 
some cognate subjects there exist so many startling 
errors, that the remarks on the different types of 
liberty may be appropriately concluded by some 
observations on them. They have a practical bear¬ 
ing, and influence large masses. 

It is doubtless true that the greatest amount of 
VOL. I.— 27 


814 


ON CIVIL LIBEETY 


liberty is at present enjoyed by the Anglican tribe, 
whose institutions and guarantees seem to form the 
only extensive and consistent, as well as practical 
system of civil liberty, the only one in which liberty 
and law have become firmly interlocked, and by 
which it has thus become possible to establish, as a 
practical reality, what Tacitus held to be impossible— 
the union of libertas and imperium. It is true also that 
the Anglican tribe has had, and still has, a greater 
influence than any tribe on the whole white race, 
and that other nations seem to have enjoyed liberty 
or advanced on her path in recent times in the same 
proportion only in which they have adopted the 
main principles and chief institutions elaborated by 
this tribe; and it is equally true that we enjoy so 
great an amount of freedom because we are accus¬ 
tomed to liberty and a government of law, and 
because our tribe has perseveringly developed it for 
centuries. But it must not be forgotten, on the one 
hand, that other nations and tribes may possibly 
develop certain principles in a manner peculiar to 
their character and circumstances; and, on the other 
hand, that it is the rule of all spreading advancement 
of humanity that the full amount of what has been 
gained by patience, blood, or fortunate combinations, 
is transferred to other regions and distant tribes. 

The missionary—from St. Paul, when he went to 
Eome, to those who now embark for the Pacific—does 
not demand the neophyte to pass through the dis¬ 
pensations of the old testament, and all the expe¬ 
rience of the early church, before he begins to teach 
the dispensation of the new testament, and establish 


AND SELF-GOVERNMENT. 


815 


clinrches according to the government and the theo¬ 
logy which exist at his home. 

There are many persons who pretend to admire 
liberty, but withhold it from the people on the plea 
that they are not prepared for it. Unquestionably, 
all tribes are not prepared for the same amount of 
liberty, and many are not yet fit for any real liberty 
at all. But two things are certain, that all nations, 
and especially all nations belonging to our own 
civilized family, prove that they are prepared for the 
beginning of liberty, by desiring it and insisting 
upon it, and that you cannot otherwise prepare 
nations for enjoying liberty than by beginning to 
establish it, as you best prepare nations for a high 
Christianity by beginning to preach it at once. 

There are persons even among ourselves who, 
observing how many and sad failures have taken 
place with other nations, bluntly assert that none 
but the Anglo-Saxons are fit for liberty, and that 
it cannot be enjoyed by others. That some na¬ 
tions are fitter for the elaboration or peaceful en¬ 
joyment of liberty than others, according to their 
character, which makes them perhaps less fit to excel 
in some other branches of civilization, cannot be 
denied. So was the Greek more fit for the fine arts 
than the Koman. That some tribes appear on the 
stage of history, act their part, and vanish again 
without having made any progress in civil liberty, 
or ever having become conscious of it as an ele¬ 
ment of advancing civilization, is equally true. But 
do we hold any nation, once fairly entered upon the 
path of civilization, unfit for science or the arts, or 


316 


ON CIVIL LIBERTY 


a stable government, or a literature, or for Christi¬ 
anity ? That in which man rises highest, and mani¬ 
fests himself most intellectually—Christianity, is 
believed to be meet for all, but liberty should be 
restricted to a tribe or a single nation? It is not 
likely. I have allowed that some nations are fitter 
for the one or the other. All will not equally cul¬ 
tivate all branches; each cannot originate each 
branch; but all will partake of every element of 
civilization; and while it may be proper for the his¬ 
torian to say such a nation has not been able to act 
with originality in this or another branch, it is not 
becoming to the philosopher to say that this part of 
our race will not be able to do so. When the 
Greek scholars were driven from Constantinople, 
and carried the last embers of Grecian civilization 
and intellectuality over the west; when Providence 
made them the missionaries of a renewed civiliza¬ 
tion, and the restoration of letters prepared the 
way for still higher achievements, no one said that 
the English, or French, or Germans were unfit to 
partake in the humanizing blessing, although the 
Italian soil, still bearing the effects of former culture, 
was the first to bring forth delectable fruit. When 
Gothic architecture had been elaborated by some, it 
was not believed that other nations could not raise 
cathedrals in the same style, and enjoy it and develop 
it in their own way. 

On the other hand, we meet with the very reverse. 
Anglican liberty is opposed on the ground that it is 
not indigenous, and that it is both inexpedient and 
unworthy to adopt it. Large numbers in France, 


AND SELF-GOVERNMENT. 


317 


both communists and imperialists, treat “ parliament¬ 
arism” in this manner; and the emperor lately said, 
when he had assembled the senate and the legislative 
corps, that France for “ the first time enjoyed the 
happiness of possessing institutions, exclusively 
French and original.” As to the originality, we 
would only observe that they are fac-similes of 
what Napoleon the First had established, and that 
he copied the senate, as he did the eagle, the title 
and idea of emperor, the name of legion, of prefect, 
from Rome, unfortunately at her worst period, for 
the Roman senate during the better time was part 
of the proud Senatus Populusque Romanus; and the 
corps legislatif, if there be any element of a repre¬ 
sentative legislature in it, is not of French origin; 
if it be a mute body, however, there is no origin¬ 
ality in it either. Even if it were as the emperor 
proclaimed it, it would convey nothing to be delighted 
in of itself. The law of all spreading civilization is 
emigration, transmission, and addition. Ought the 
French to reject the Grecian orders of architecture 
because they are not French, or ought our medical 
students not go to Paris because the French science 
of medicine is not ours? Ought the French to 
reject saving banks because they were first estab¬ 
lished and developed in England, and ought the 
English to discard Jacquard’s machine because in¬ 
vented in France? The son of Sirach said: that 
wisdom was hovering like the clouds until it “ took 
root in an honorable people”"—the Israelites. It is 


a Ecclesiasticus, 24. 



818 


ON CIVIL LIBEKTY 


thus with all wisdom, all great ideas and comprehen¬ 
sive systems. They take root with “ an honorable 
people,” that develops them. After that come the 
winds of heaven and carry the seeds far and about. 
Patriotism and national vanity are not the same. 
Patriotism is excellent so long as it is the love of 
its own to such a degree that it is ready to bear any 
sacrifice, and to do all for its benefit; it is not a vir¬ 
tue when it consists in an enamoredness with itself. 
Narcissus is not the symbol of patriotism, but Ly- 
curgus and Solon travelling far in order to gather 
knowledge for their own country, are. 

At all great and distinct periods of modern his¬ 
tory, there are a general idea and certain adequate 
forms pervading the whole. Such was the papal 
period at the beginning of the middle ages; such was 
the universal feudal system; such the period of uni¬ 
versities springing up everywhere; such the periods 
of art; such the periods of Abelard and scholastic 
philosophy; such the rising of free cities in all parts 
of Europe; such the ardor of maritime discovery and 
enthusiasm for “ cosmographysuch the period of 
monasteries; such protestantism; and such is, I 
believe, the present period of civil liberty; and this I 
believe to consist, for centuries to come, essentially in 
the Anglican type. To learn liberty I believe that 
nations must go to America and England, as we go 
to Italy to study music, and to have the vast world 
of the fine arts opened to us, or as we go to France to 
study science, or to Germany that we may learn how 
to instruct and spread education. It was a peculiar 
feature of antiquity that law, religion, dress, the arts 


AND SELF-GOVERNMENT. 


319 


and customs, that ever3^thing in fact was localized. 
Modern civilization extends over resrions, tends to* 
make uniform, and eradicates even the physical dif¬ 
ferences of tribes and races.’^ Thus made uniform, 
nations receive and give more freely. If it has 
pleased God to appoint the Anglican tribe as the 
first workmen to rear the temple of liberty, shall 
others find fault Avith Providence ? • The all-pervad¬ 
ing law of civilization is physical and mental 
mutual dependence, and not isolation. 

I do not think it necessary to reply here to those 
perverters of truth Avho try to justify their denial of 
liberty to the people on the ground that it is not 
national. This is done by gOA^ernments Avho at the 
very time copy foreign absolutism. There is doubt¬ 
less something essential in the idea of national de-. 
velopment, but let us never forget tAVO facts: Men, 
hoAvever different, are far more uniform than dif-^ 
ferent; and all the noblest nations have arisen from 
the mixture of others, from the Greeks to our OAvn. 

•2 The mutual influence of dilferent literatures is daily extending.^ 
Take as an instance the literature of England, France, Germany, 
and the United States, and add the mutual influence of the jour¬ 
nals of these nations. Then consider how many of the elements of 
civilization are not national, but common to all—the alphabet, the 
numeric signs, with the decimal system, commercial usages and 
bookkeeping, social intercourse and laws of politeness; the visiting 
card, the railway, the steamboat, the post-office, the institution of 
money, the bill of exchange, insurance—indeed it is impossible to 
enumerate all the agreements of nations belonging to our race. I 
shall only add the dress, the furniture and even cookery. 



820 


ON CIVIL LIBEETY 


CHAPTEE XXIY. 

THE INSTITUTION. ITS DEFINITION. ITS POWER FOR 
GOOD AND EVIL. 


It lias been shown that civil liberty, as we under¬ 
stand and cherisli it, consists in a large amount of 
individual rights, checks of power and guarantees of 
self-government. We have more or less fully indi¬ 
cated that self-government, in the sense in which we 
take it, and in connection with liberty, consists in the 
independence"'of the whole political society, in a 
national representative government and local self- 
government, which implies that even general laws 
and impulses are carried out and realized, as far as 
possible, by citizens who, by receiving an office, be 
it by election or appointment, essentially remain 
citizens, and do not become members of a hierarchy 
of placemen.^ We have seen that self-government, 


’ At a sumptuous ball, which the city of Pai'is gave, in the year 
1851, to the commissioners of the London Exhibition, I was sitting 
in a corner and reflecting on the police officers in their uniforms and 
the actual patrols of the militaiy pompiers in the very midst of 
the festive and ci'owded assemblage, when I was introduced to one 
of the first statesmen of France and liberal members of the national 
assembly. He had been at London, to view the exhibition. It was 
the first time he had vi.sited England. “Do you know,” said he. 



AND SELF-GOVERNMENT. 


321 


in general, requires that there be an organism to 
elaborate and ascertain public opinion, and that, 
when known, it shall pass into law, and, plainly, rule^ 
the rulers; that government interfere as an exception. 


“what struck me most—far more than the exhibition of works 
of art and industry ? It was the exhibition of the civism anglais 
(this was the term he used) in the London police.” It may be readily 
supposed that an American citizen turned his face toward the 
speaker, to hear more, when the Frenchman continued: “I am in 
eai’nest. The large number of policemen, with their citizen appear¬ 
ance, although in uniform, seeming to be there for no other purpose 
than to assist the people—and the people ever ready to assist them— 
voild, what has most attracted my attention. Liberty and the go¬ 
vernment of law are even depicted in their police, where we should 
seek it least. What is it that strikes you most in coming here?” 

“ The American,” I replied, “in visiting the continent of Europe, 
is most impressed by the fact that the whole population, from 
Moscow to Lisbon, seems to be divided into two wholly distinct 
parts—the round hats, the people, and the cocked hats, the visible 
government. The two layers are as distinct as the hats, and the 
traveller sees almost as many of the one form as of the other.” 

I believe that my French interlocutor showed a penetrating mind 
in thus singling out the English police. 

There are large police establishments in all European countries, as 
all densely peopled countries require them. The different spirit 
and organization, however, of these establishments are most charac¬ 
teristic. Nothing, perhaps, shows more the character of a citizen- 
government in England than the wide-spread institution of the 
police, which has developed itself, under sir Robert Peel, out of the 
ancient constable. It has immense power; it has preventive, detect¬ 
ive and custodial power; yet it is supported by the citizens, and no 
one fears that it will ever be used as an institution of political es¬ 
pionage and denunciation—as delatores of old and mouchards of 
modern times. It is strictly under the public law, and that implies 
under publicity. There is a whole literature on this subject, but 
I know of no brief paper exhibiting so well its essential character 
as the seventh paragraph of Mittermaier’s English, Scottish and 
American Penal Processes. 



322 


ON CIVIL LIBERTY 


and not as the rule; and that, on the other hand, self- 
government neither means self-absolutism, nor ab¬ 
sence of rule, but that, on the contrary, liberty 
requires a true government. A weak government 
is a negation of liberty; it cannot furnish ns with a 
guaranteeing power, nor can it procure supremacy 
for public will. In other spheres it may be true that 
license is exaggerated liberty, but in politics there 
can be nothing more unlike liberty than anarchy. 

We have still to ascertain how this system of civil 
liberty is to be realized. Liberty cannot flourish, 
nor can freedom become a permanent business of 
actual life, without a permanent love and a habit of 
liberty. How is the one to be engendered, and the 
other to be acquired ? 

There is no mathematical formula by which 
liberty can be solved, nor are there laws by which 
liberty can be decreed, without other aids. We gain 
no more by throwing power unchecked into the 
hands of the people. It remains power, and is not 
liberty, and people still remain men. Flattery does 
not change us, for we are all 

“Obnoxious, first and last 
To basest things,”2 

and thus flattery is no foundation for liberty. Each 
one of us may be declared a sovereign, as every 
Frenchman was designated in a solemn circular,^ by 

2 Paradise Lost, Book 9, line 170. 

3 In a circular, sent by the provisional government all over France 
before the general election for the national constituent assembly, in 
1848, was this sentence: “ Every Frenchman of the age of manhood 



AND SELF-GOVERNMENT. 


323 


the provisional government, or the people may be 
called almighty—le peuple tout-pnissant—as in the 
midst of loathsome political obscenity they were 
termed by the dictatorial government when they 
were expected and led to vote for a new emperor, 
and by an act of omnipotence to extinguish all. 
They were asked to divest themselves of this very 
omnipotence, which nevertheless is claimed for the 
people alone, as inherent in its own nature, and to 
submit their omnipotence to a still greater omnipo¬ 
tence of one man. Nothing of all this is liberty. 
Self-immolation, even where it is an actual and not 
a theoretical act of free agency, is not life. 

Enthusiasm is necessary for liberty as for every 
great and noble work, but enthusiasm comes and 
goes like the breezes of the ocean. How shall they 
be used for the positive interests of the navigator ? 
Enthusiasm is not liberty, nor does the reality of 
liberty consist in an sesthetical love of freedom. The 
poet may be as much the priest of liberty, as he is 
the seer of love, but poetry is no more the thing it 
sings than theory is the deed, or ethics the character 
of man. 

Education has been considered by many as the 
true basis of popular liberty. It is unquestionably 
true, and proudly acknowledged by every lover of 

is a political citizen; every citizen is an elector; every elector is a 
sovereign. There is no one citizen who can say to another : ‘You 
are more of a sovereign than I.’ Contemplate your power, prepare to 
execute it, and be worthy of entering on the possession of your 
kingdom.” The author of these phrases is Mr. de Lamartine, who 
says, in his Revolution of 1848: “ The reign of the people is called 
the republic.” 



324 


ON CIVIL LIBERTY 


modern popular liberty, that a wide-spread and sound 
"education is indispensable to liberty. But it is not 
liberty itself, nor does it necessarily lead to it. 
Prussia is one of tbe best educated of countries, but 
liberty has not yet found a dwelling-place there. 
The Chinese government is avowedly based upon 
general education and democratic equality in the 
hierarchy of officers, but China has never made a 
step in the path of liberty. Education is almost 
like the alphabet it teaches. It depends upon what 
we use it for. Many despotic governments have 
found it their interest to promote popular education, 
and the schoolmaster alone cannot establish or main¬ 
tain liberty, although he will ever be acknowledged 
as an efficient and indispensable assistant in the cause 
of modern freedom. 

How then is real and essential self-government, in 
the service of liberty, to be obtained and to be per¬ 
petuated? There is no other means than a vast 
system of institutions, whose number supports the 
whole, as the many pillars support the rotunda of 
our Capitol. They may be modest in their appear¬ 
ance, and even unseen by the passer-by, as those 
pillars are, but they are nevertheless the real sup¬ 
port. 

Let us then consider the nature of institutional 
liberty more closely. In order to appreciate this 
subject, it will be desirable to inquire first into the 
’ nature of institutions in general. 

According to the highest meaning which the term 
has gradually acquired, an institution is a system or 
body of usages, laws, or regulations of extensive 


AND SELF-GOVERNMENT. 


325 


and recurring operation, containing within itself an 
organism by which it effects its own independent 
action, continuance, and, generally, its own farther 
development. The idea of an institution implies a 
degree of self-government. Laws act through human 
agents, and these are, in the case of institutions, 
their officers or members. 

We are likewise in the habit of calling single 
laws or usages (which are laws of spontaneous 
growth) institutions, if their operation is of vital 
importance and vast scope, and if their continuance ^ 
is in a high degree independent of any interfering 
power. These two characteristics establish a close 
affinity between such laws and institutions proper 
as they have been just defined. Thus we call mar¬ 
riage an institution in consideration of its pervading 
importance, its extensive operation, the innume¬ 
rable relations it affects, and the security which its 
continuance enjoys in the conviction of almost all 
men, against any attempts at its abolition. Indeed, 
we generally mean by the term Institution of Mar¬ 
riage, pretty much the institution of the family, that 
is the family as a community sanctioned and fostered 
by the law, by authoritative usages, and by religion— 
the cluster of laws and usages, social, political, and 
religious, which relate to this well-defined commu- 
nity. 

It always forms a prominent element in the idea 
of an institution, whether the term be taken in the 
strictest sense or not, that it is a group of laws, 
usages and operations standing in close relation to 
VOL. I.— 28 


326 


ON CIVIL LIBEKTY 


one another, and forming an independent whole with 
a united and distinguishing character of their own. 

A system of laws very often consists of a variety 
of systems, each enjoying a proportionate degree of 
self-government, as a general organism is composed 
of many organs with distinct and peculiar actions 
of their own, although working in unison and ac¬ 
cording to the principles and regulative laws of the 
general organism. We have many institutions 
which consist of a number of institutions either of 
the first mentioned or second sort, and as institutions 
may exist in all the great spheres of human action 
it naturally results that there are institutions of the 
greatest variety in character and extent. A bank, 
parliament, a court of justice, the bar, the church, 
the mail, a state are institutions, as well as the lord’s 
supper, a university, the inquisition, all the laws re¬ 
lating to property, the sabbath, the feudal system. 
The Eoman triumph, the Hindoo castes, the bill of 
exchange, the French Institute, our presidency, the 
Hew York tract society, the Areopagus or Olympic 
games, an insurance company, the janizaries, the 
English common law, the episcopate, the tribune- 
ships, the “captainship” of a fishing fleet on the 
banks, “ the crown,” the German book trade, the 
Goldsmith’s Company at London, our senate, our 
representatives, our congress, our state legislatures, 
courts of conciliation, the justiceship of the peace, 
the priesthood, a confederacy, the patent, the copy 
right, hospitals for lunatics, estates, the East India 
Company—all these and thousands more are or were 
institutions in the one or the other adaptation of the 


AND SELF-GOVERNMENT. 


827 


term. Whether they are good or bad, expedient or 
unwise, human or divine has nothing to do with the 
distinctive character of an institution as such. 

“ The School,” that is to say the whole school sys¬ 
tem, as well as the modern national army, in Prussia, 
have been called institutions, when it was desired to 
express the idea that they are establishments of vast 
importance and that they enjoy a supposed degree 
of independent vitality. Mr. Bunsen, in his Hyppo- 
litus, calls the book of common prayer “ a national 
institution.”'* 

The noun Institution is, indeed, formed of the 
verb to Institute, but it does not, on that account, 
express, .as noun, the action or the effect of that 
which constitutes the meaning of the verb. The 
sense of the noun frequently diverges from that of 
the verb, in all languages, and especially so in the 
English.® We institute an inquiry; but an inquiry 

Vol. iii. 293,—A member of the late French National Assembly, 
speaking of the enormous California lottery, which was then in its 
full ruinous operation in France, used the expression: “ This is not 
a lottery; it is a series of lotteries; I ought to say an institution 
of lotteries,” 

The exaggeration was carried farthest when an English news¬ 
paper called the duke of Wellington an institution. We see, how¬ 
ever, through the exaggeration, the original sense universally at¬ 
tributed to the term, 

5 The word is a finished and a given thing; the idea is in a con¬ 
stant state of expansion or contraction, far exceeding the formative 
powers even of the most perfect language, so that frequently a 
whole class of words derived from the same root retains nothing 
in common but a vague association of ideas, and even this often 
vanishes. The history of the changing meaning of man’s words is 
instructive, and equally so the history of the changing word. I 



328 


ON CIVIL LIBEKTY 


is not an institution; and on the other hand, there 
are many institutions which have never been insti¬ 
tuted. They have grown. 

This class of institutions forms in a certain point 
of view the most important, as will be admitted 
when we consider that the jury, systems of common 
law, the British parliament and our bicameral sys¬ 
tems of the legislature, most governments and the 
states themselves are grown institutions. 

The English language has but one term for both, 
the crescive institutions, as they might be termed, 
and the instituted or enacted institutions, such as 
a corporation, congress or our legislatures; whose 
institutors are the people, enacting the constitu¬ 
tions. Grown or spontaneous institutions are not 
ill-defined or loosely distinguished from one another 
on that account; they may be as individualized as a 
shady tree in the forest; and enacted or contrived 
institutions are not confined and narrow on that 
account. They may be as extensive in action as an 

need only allude to such remarkable words as Stare, Status, Statute, 
Stand, Establishment, Stabilis, Estate, and the whole history through 
which the meaning of the word State has passed and is still passing on 
the one hand, and the many branches such as Stable, Staple, StalF, 
Station, Statistics; or we may take Civis, Civitas, Civilis, Civilitas, 
Civility, Civil (in its two distinct terms). Civilization, Citizen; Nas- 
cor. Nation, National; Populus, Publicus (for populicus). Public, 
People, Popular and Popularii; Gignere, Genus, Gens, Gentile, 
Gentle, Genteel, Gentleman, with the different meanings through 
which this last word has passed from the time when it meant a 
man of gentle, that is, nofvulgar, not common blood or extraction, 
to its present import, which relates exclusively to character and 
breeding. Breeding itself might be mentioned here. 



AND SELF-GOVERNMENT. 


829 


Atlantic steam-sliip. The speakership is a well- 
defined crescive institution; the supreme court of 
the United States is a vast enacted institution. 

Most of the institutions which owe their origin to 
spontaneous growth have become in course of time 
mixed institutions. Positive legislation has become 
mingled with self-grown usage, as is the case with^ 
the institution of property, the jury, the bill of ex¬ 
change, the Hindoo castes, money. 

It is with the object of comprehending the grown 
as well as the established institutions, that the words 
“usages, laws, or regulations” have been employed 
in the definition at the head of this discussion. 

Dr. Thomas Arnold, whose name I never mention 
without veneration, says, at the beginning of his 
Lectures on History : “ I would first say that by in¬ 
stitution I wish to understand such officers, orders 
of men, public bodies, settlements of property, cus¬ 
toms or regulations, concerning matters of general 
usage, as do not owe their existence to any express 
law or laws, but having originated in various ways 
at a period of remote antiquity, are already parts of 
the national system, at the very beginning of our 
historical view of it, and are recognized by all actual 
laws, as being themselves a kind of primary condi-^ 
tion on which all recorded legislation proceeds. 
And I would confine the term laws to the enact¬ 
ments of a known legislative power at a certain 
known period.” 

It will be seen that this writer restricts the mean¬ 
ing of the term institution to what has been called 
28 * 


830 


ON CIVIL LIBERTY 


grown institutions; nor does lie do tMs with philo¬ 
sophical cogency. He enumerates instances rather 
than gives a definition; and it seems arbitrary to 
bestow the term on grown institutions only. It is 
contrary to universal usage, as well as to the ne¬ 
cessity of the case. What is an instituted legisla¬ 
ture of Wisconsin, an incorporated bank, an orphan 
asylum, or a chartered city government, if it be not 
an institution? According to Dr. Arnold, scarcely 
a pure institution exists, for in all, or nearly all, 
institutions positive enactments have become mixed 
up with the unenacted usage, as has been mentioned 
before. 

Nor is it accurate to call certain “officers or orders 
of men” institutions. What unites the individual 
officers into an institution ? or how can the institu¬ 
tion outlast the individual officers existing at any 
given period ? How could the house of representa¬ 
tives of congress be an institution, which every one 
calls it, and which assuredly it is, when its members 
cease to be such every two years ? They are but 
temporary members of the perpetual institution. 
The institution itself is the organic law in the con¬ 
stitution of the United States which provides for 
the organization and periodical renewal of the house. 
The same is true with reference to the state and its 
citizens, living at any given time. Citizens are born 
^ and are dying all the time, but the state is a con¬ 
tinuum. The jury of the common law is an institu¬ 
tion now spreading over the territory of at least 
sixty-eight millions of people, but the jurors .form 


AND SELF-GOVEENMENT. 


331 


only very transitory, althongli continually repeated 
representations or embodiments of the’institution.® 
It is this very fact, passed over by Dr. Arnold, 
that constitutes one of tlie most important practical 
features of the institution. It spreads the framework 
of the same system of laws over sets of men periodi¬ 
cally renewed, prescribing their line of action, so that 
it becomes a consistent continuation of that which 
their predecessors have done, or, to express it in 
other words, it breathes the same leading principles 
into different aggregates of men and different gene¬ 
rations, as the same principles in varying matter 
produce and reproduce the same seasons. The in¬ 
stitution thus insures perpetuity, and renders de¬ 
velopment possible, while without it there is little 
more than subjective impulsiveness, which may be 

® The term Institute seems to differ from Institution, according 
to present usage, in this, that the first, when it does not mean the 
initiatory knowledge of a wide system of knowledge (as institutes of 
the pandects, of medicines), is chiefly used as a noun proper for an 
institution of learning or the diffusion of knowledge, for instance 
French Institute, Mechanics’ Institute. It may be used as a 
generic term for institutions of diffusion of knowledge of a higher 
character; but it is frequently abused in these cases. Schools of 
some pretence are called institutes, with that deplorable extrava¬ 
gance with which common schools are called academies, common 
colleges universities, auction rooms auction marts, a single and 
simple person a party, every chairman^ a president, and which 
has so sadly invaded our manly language that many superlative 
words, such as splendid, magnificent, giantlike, transcendent, illus¬ 
trious, and Imndreds of others can hardly be any longer used by a 
sober and vigorous writer, and have become worth little more than 
old coins, once good but now clipped, punched, and swetted by 
unlawful usage. 



332 


ON CIVIL LIBERTY 


good and noble or ruinous and purely passionate, but 
always lacks continuity, and consequently develop¬ 
ment and safe assimilating growth. A market 
assembly, convened at stated intervals, without 
institutions, can produce little more than a suc¬ 
cession of impulsive or instinctive actions, the more 
impulsive the more exciting the subject is on which 
the uninstitutional multitude acts. The same applies 
to larger communities, if they act without institutions, 
and in this resemble the Indians of the pampas, who 
meet and act on each question by simple majority, 
unguided, unmoulded, unrestrained by permanent 
laws and usages, or without a maturing organism. 

There is nothing so void of lasting good as that his¬ 
tory which consists of a succession of actions through 
which there runs no connecting idea, no growth 
and expansion. It sinks to mere anecdotical chro¬ 
nology. All that is deeply good or truly great, and 
not only vast, in the sense of Attila’s conquest, re¬ 
quires development and progress. Impulsiveness 
without institutions, enthusiasm without an organism, 
may produce a brilliant period indeed, but it is gene¬ 
rally like the light of a meteor. That period of 
Portuguese history which is inscribed with the names 
of Prince Henry the Navigator, Camoens and Albu¬ 
querque, is radiant with brilliant lustre, but how 
short a day between long and drear}^ nights! Portugal 
had no institutions^ to perpetuate her glory, and that 
splendor was but the accidental effect of fortunate 
circumstances happening to combine at that period. 
The best national impulses, without institutions, 
remain but happy accidents. 


AND SELF-GOVERNMENT. 


333 


When it is said that one of the requisites of the in¬ 
stitution is that it shall contain within itself an organ¬ 
ism by which it effects its own independent action and 
continuance, it is obvious that this must be taken in a 
comparative sense, because every institution ought to 
stand in connection with others, and is frequently a 
minor organism of a more comprehensive one; or an 
institution may be actually the creature of the legisla¬ 
ture, and the legislature itself may be the creature of 
the constitution, which may have emanated from the 
sovereign will of the people. Yet we call a body 
of laws or usages an institution only when we 
unite the idea of an independent individuality with 
it. It must have its own distinct character, its own 
peculiar action, and it must not owe its continuance 
to the arbitrary mandate of a will foreign to it. 
Independence does not mean sejunction or isolation.' 

If this were not so, we would not stand in need of 
the term institution, and the simple term of Law or 
Ordinance would suffice. 

Keither the Eomans nor the Greeks had a separate 
term for institution;^ indeed the Greeks had not 

’’ The Latin Institutum does by no means exactly correspond to 
our word institution. It means a purpose, object, plan or design, 
and, finally, a settled procedure, by which it is intended to obtain 
a certain object; hence a uniform method of action, to be observed 
when similar cases occur. Institutum is very frequently used in 
conjunction with consuetudo, and often means nothing more than 
settled usage with reference to certain cases. Institutum thus 
designates one of the elements of our Institution, but it does not 
include the idea of a distinctly limited system of laws or usages 
with a considerable degree of autonomy, nor does it comprehend 
the idea of our enacted institutions, Institutum retains the idea of 



834 


ON CIVIL LIBEKTY 


even distinct words for the Latin jus and lex, a pau¬ 
city of language which we share with them; and if 
the Eomans had no word for institution, although 
they had many real institutions, we have many im¬ 
portant separate systems of law, such as the law of 
insurance, of bailment, the maritime law, without 
having an appropriate term for separate bodies 
of laws and rules. Nor did the Eoman probably 
feel the want of a word for Institution, for the same 
reason that he expressed time by saying: “Two 
hundred years after the founded cityT The thing 
itself, the city, was in his mind. We would 
say; Two hundred years after the foundation of the 
city. The foundation of the city, an abstraction, is 
in our mind. The Eoman said Eespublica, the Public 
Thing, and upon this raft of words, strong but 
coarse, his own political progress and civic life 
forced him to put a heavy freight of meaning, until 
it came to designate the vast idea of Commonwealth. 
The Eoman was adverse to abstract terms.® Ab- 


usage throughout. Still, it is readily seen how the Roman word 
instituturn was naturally changed and expanded into the modern 
word Institution. 

® The Roman shunned abstraction even though he should become 
illogical. He said: In medias res, into the middle things, instead 
of into the middle of things, and we moderns abstract even against 
all sense. I read but yesterday in large letters over a shop this 
word—Carpetings. Here we have first an unmeaning abstraction 
of a simple and sound word, carpet, and then a plural is made of 
the moi'e abstract term. The Americans, altogether inclined to 
use pompous and grandiloquent words, are also given to use these 
abstract terms or those that approach abstraction far more than 
the English. The sign of the smallest baker’s shop will not be 
John Smith, Baker, but Bakery by John Smith, perhaps even Ameri- 



AND SELF-GOVEKNMENT. 


335 


stracting was a process at wliicli lie was no good hand.® 
The Greeks, however, may have lacked a proper 
term for the idea Institution, although so ready to 
abstract, and possessed of a plastic language, which 
offered peculiar facilities for the formation of abstract 
terms, while yet the people were charaeterized by an 
eminently political temperament, simply because the 
Greeks were, comparatively speaking, not a tribe of 
an institutional bias. They were not prone to esta-^ 
blish political institutions, and, with the exception of 
the Dorians, preferred to bring everything under the 
more or less direct will of the mass. But, although 
the Greeks abstracted well, and had a language in 
Avhich they could readily cast any abstraction, it must 
not be forgotten that they rather restricted their 
terms of abstraction to philosophical speculation, and 
in all the other spheres of life and action they mani¬ 
fested the true antique spirit, that of positive reality. 
Their style and expressions accorded with this bias. 

can Bakery, or, should it happen to be near the sea. Ocean Bakery. 
A common shop of a green grocer in the second largest city of the 
United States calls itself United States Market. The negroes 
have caught the fever. Not long ago I saw a common shaniy 
erected in a southern forest, to accommodate travellers with coffee 
while their luggage was ferried over a river, adorned with the 
following words on a pine board: Jenny Lind and Sontag Hotel. 
The railway bridge had been carried away, and the cafe was but 
for a few days. 

9 The best grammarians tell us that Latin nouns ending in io, 
and adjectives ending in ilis (that is, abstract terms), must be 
used with circumspection, and not without good authority, since they 
are comparatively rare in the best writers. This is true, and speaks 
volumes concerning the Roman character and mental constitution. 




336 


ON CIVIL LIBERTY 


They might as easily as ourselves have said the 
Union or the League of the Achaeans, but their word 
for our union was simply “ the whole” (ro xolvov). 

Few nations have evinced a greater and more con¬ 
stant tendency to build up institutions, or to cluster 
together usages and laws relating to cognate subjects 
into one system, and to allow it its own vitality, than 
the Komans in their better period. The Greeks, as 
has been observed, were far less an institutional peo¬ 
ple. There is a degree of adhesiveness and tenacity 
—a willingness to accumulate and to develop pre¬ 
cedents, and a political patience to abide by them— 
necessary for the growth of strong and enduring 
institutions, which little agreed with the brilliant, 
excitable, and therefore changeable Greeks. This 
was at least the case with the Athenians and all their 
kindred, and to them belongs the main part of all 
that we honor and cherish as Grecian. 

The London Times has called the queen of Eng¬ 
land an institution. This is rhetorically putting the 
representative for the thing represented—the queen 
for the crown, which itself is a figurative expression 
for the kingly element in the British polity. Never¬ 
theless, the meaning of the assertion that the queen 
of England is an institution, is correct and British. 
It originated from a conviction that the monarch of 
Great Britain is not such by his own individuality, 
that he is not appointed by a superior power or 
divine right, but that he enjoys his power by the law 
of the land, which confines and regulates it. It 
means that he is the chief ofiice-bearer, or, it may be, 
the chief emblem-bearer, of a vast institution, which 



AND SELF-GOVERNMENT, 


337 


forms an integral part of the still more comprehensive 
institution called the British government or the state.® 

9 The reader who desires to become acquainted with the oppo¬ 
site view, must turn to the Christian Politics, by Rev. Wm. Sewell, 
Fellow and Subrector of Exeter College, London, 1848; a book 
which carries out the views of Filmer to an extent which that 
apologist of absolutism never contemplated. It may be fairly con¬ 
sidered to occupy the point opposite to that of the most rabid 
socialist of France; and, according to the rule that we ought to 
welcome a work which carries its principle to the fullest length, 
no matter what that principle may be, it is worth the student’s 
while to make himself acquainted with it. If he can get through 
the whole, however, he is more patient than I found it possible 
to be. According to Mr. Sewell, there is but one true govern¬ 
ment, absolute monarchy, demanding absolute obedience; the king 
makes the state, and the view I have endeavored to prove in my 
Ethics, that the state, despite of its comprehensive importance, still 
remains a means to obtain certain ends, is attacked as the opinion 
of mere “ philosophers.” The king, the house of lords, and that of 
the commons, as they ought to be considered, indicate, according 
to this writer, the relation in which possibly the three persons of 
the one deity stand. Filmer stopped short at least with Adam. To 
counteract the revolting effect which may have just been produced, 
I refer the reader to page 146, where he will find, in a passage of 
great length, that the Greek at Marathon fought only for his coun¬ 
try, his hearth and his laws, while the Persian far surpassed him, 
because he fought for his king (those also who, according to Hero¬ 
dotus, were whipped into battle ?), and that “ a Christian eye will 
look with far greater satisfaction and admiration on the Persians, 
who threw themselves out of the sinking vessel, that by their own 
death they might save their king, than upon Thermopylm or Mara¬ 
thon.” Enough! I should not have alluded to such extravagances 
and crudities, were not the book a very learned yet illogical apology 
for a doctrine which many may have supposed to be dead, and did 
it not occupy, in view of its preposterous theory, the first place of 
its class. Nor is it historically uninteresting that such a work has 
been written in the middle of the uineteenth century. So much is 
certain, that were the English government actually founded upon 

VOL. I.— 29 



838 


ON CIVIL LIBERTY 


In the same way are the lord chancellor, the justice 
of the peace, the coroner, institutions; not indeed the 
individuals who happen to be invested with the 
office, but those systems of laws and usages which 
they represent at the time. 

It is likewise obvious why very old usages or 
offices of large influence are often called institutions. 
The fact of their being old proves a degree of inde¬ 
pendent action or existence. No change of things 
around them has swept them away; no power has 
ventured to strike them down. They appear to be 
rooted in society itself, beyond the reach of govern¬ 
ment ; and single offices occasionally are called insti¬ 
tutions, by way of flattery, because all feel that a real 
institution is in dignity superior to a single law or 
office, on account of its inherent principle of self- 
government. 

The following, then, are necessary attributes of a 
complete institution, taking the term in its full mo¬ 
dern adaptation: 

A system or an organic body of laws or usages 
forming a whole; 

Of extensive operation, or producing widely spread 
effects; 

Working within a certain defined sphere; 

Of a high degree of independent permanency; 

With an individual vitality and an organism, pro¬ 
viding for its own independent action, and, fre- 


that hyper-absolutism, which the author considers so Christian, no 
one would be permitted to assail its fundamental principles with 
that impunity which he now enjoys. 



AND SELF-GOVERNMENT. 


839 


qnently, for its own development or expansion, or 
with autonomy; 

And with its own officers or members, because 
without these it would not be an actual system of 
laws, but merely a prescript in abeyance. 

The institution is the opposite of subjective con¬ 
ception, individual disposition and mere personal 
bias. The institution implies organic action. In 
this lies, not only its capacity of perpetuating prin¬ 
ciples and of insuring continuous, homogeneous and 
expansive action, but also its great power, its gran¬ 
deur, its blessing, its danger and its curse, according 
to its original character and its inherent principle. 
Christ imprinted on his church the missionary cha¬ 
racter, and from the apostles to the servants of the 
gospel who lately starved near Cape Horn, the insti¬ 
tution of the missionary ministry has been the pio¬ 
neer and handmaid of extending civilization. But 
if the institution is intrinsically bad, or contains 
vicious' principles, it lends additional and fearful 
power to the evil element within it, and gives a pro¬ 
portionate scope to its calamitous influence. If it be 
established in a sphere in which the subjective ought 
to prevail, it becomes a fearful curse when it makes 
the objective prevail more than is desirable, or when 
it makes the annihilation of individuality and per¬ 
sonality in general one of its very objects. The 
gigantic institution of the Society of Jesus, and some 
of the modern Trade’s Unions are impressive and 
amazing examples. 

Whenever men allow themselves to glide into the 
belief that moral responsibility can be aught else 


340 


ON CIVIL LIBERTY 


than individnal, and that responsibility is divisible, 
provided many perform but one act; whenever the 
esprit du corps prevail sover the moral conscionsness 
of man, which is inseparable from his individuality, 
the institution gives a vigor to that which is unhal¬ 
lowed and unattainable by the individual. The 
institution is, like every union of men, subject to the 
all-pervading, elementary law of moral reduplication, 
as I have called it on previous occasions, and which 
consists in this, that any number of united indi¬ 
viduals, moved by the same impulse, conviction or 
desire, whether good or bad—whether scientific, 
sesthetic or ethical, patriotic or servile, self-sacrificing 
or self-seeking—will countenance and impel each 
other to far better or far worse acts, and will develop 
in each other the powers for the specific good or 
evil, in a far greater extent, than would have been 
possible in each separate individual. It is the law 
which is illustrated by the excellence of whole pe¬ 
riods in one particular sphere; by the rapid deca¬ 
dence of nations when once their fall begins; by the 
lofty character of some times, and by the terrible 
efieet of indiscriminate imprisonment; by the power 
of example; by the silliness which at times pervades 
whole classes or eommunities; by the sublime, calm 
heroism on board a sinking man-of-war, and at 
other times by the panic of large masses. It is the 
universal law of mutual countenance and excitement. 

If an institution is founded on a vicious principle, 
or if a bad impulse has seized it for a time, it will 
not only add to the evil force, according to the 
'general law of moral reduplication, but lend addi- 


AND SELF-GOVERNMENT. 


841 


tional strength by the force of its organization and 
the continuity of its action. Members of an institu¬ 
tion will do that which, as individuals, they would 
never have possessed the immoral courage of perpe¬ 
trating. They will deny the obligation of paying 
what is due to widows and orphans, in cases which 
would have made them look upon the denial as dis¬ 
graceful, had they acted in their own individual 
cases. Thousands who have committed acts of cry¬ 
ing cruelty as members of the Holy Office would not 
have been capable of committing them individually. 
The institution in these cases has the same effect 
which all united and continuous action has. 

On the other hand, institutions have been able, for 
the same reason, to resist iniquitous inroads, or its 
members have been wrought up to a manly de¬ 
votion, when the individual would not, often at 
least could not, have resisted. In almost all cases 
of an invasion of rights by one of the domestic 
powers, we find that some institution has formed 
the breakwater against the rushing tide of power. 
There are many instances, such as the “ Case 
of the Bishops” under James the Second, and the 
rejoicing of the better disposed Frenchmen, when 
lately the court of Paris declared itself, although in 
vain as it turned out, competent to judge of the spo¬ 
liation which the dictator had decreed against the 
Orleans family, which show how instinctively men 
look toward institutions for support and political 
salvation. 

I have purposely restricted my remarks on the 
resisting force of institutions to cases of invasion 
29* 


342 


ON CIVIL LIBERTY 


by domestic powers. Wlien foreign invaders trample 
upon rights and grind down a people, something 
different and sharper is required to rouse them, to 
electrify them into united resistance. Humanity it¬ 
self must be stung, an element in man’s very nature 
must be offended, so that the most patient cannot en¬ 
dure it any longer. We find, therefore, that innu¬ 
merable popular risings against foreign oppressors, 
in antiquity and modem times, have taken place, 
when the overbearing oppressor, having gone all 
lengths, at last violates a wife or a daughter. That 
at length comes home to the most torpid heart, and 
will not be borne by the veriest slave. 

We investigate, here, the nature of the institution 
in general. Like everything possessing power, it 
may serve for weal or woe, as we have seen. Con¬ 
stituted evil is as much worse, as constituted good 
is more efficaciously good than that effected by 
the individual. When we know the essential na¬ 
ture of the Institution, we shall be able to judge 
when, and where, and how it may be used bene¬ 
ficially. An institution is an arch; but there are 
arches that support bridges, and cathedrals, and 
hospitals; and others that support dungeons, ban¬ 
quet rooms of revelry, torture chambers, or spacious 
halls in which criminal folly enacts a melancholy 
farce with all the pitiful trappings of unworthy sub¬ 
mission. 

The greater or less degree in which the institu¬ 
tional spirit of different nations is manifested fur¬ 
nishes us with a striking characteristic of whole 
nations. The Eomans, the Netherlanders, and in¬ 
deed all the Teutonic tribes, until the dire spirit 


AND SELF-GOVERNMENT. 


343 


of dis-individualizing centralization seized nearly 
all the governments of the European continent, 
were institutional nations. The English and our¬ 
selves are still so. The Kussians and all the Scla¬ 
vonic nations, the Turks and the Mongolian tribes, 
seem to be remarkably uninstitutional. 

A similar remark naturally applies to different 
species of governments. Some do not only result 
from a decidedly institutional tendency of the peo¬ 
ple at large, but they also promote it, while there is 
in others an inherent antagonism to the institution. 
No absolutism, whether that of one or many, brooks 
institutions. The reason is not only because all ab¬ 
solute rulers discountenance opposition, but be¬ 
cause there is in every despotism an ingrained in¬ 
compatibility with independent action and self- 
government, in whatsoever narrow circle or mode¬ 
rate degree it may strive to maintain itself. This 
is so much the case that often despots of the best 
intentions for the welfare of the people have been 
the most destructive to the remnants of former, or 
or to the germs of future institutions, in the very pro¬ 
portion in which they have been gifted with brilliant 
talents, activity and courage. These served them 
only to press forward more vigorously and more 
boldly in the career of all absolutism, which consists 
in the absorption of individuality and institutional 
action, or in levelling everything which does not 
comport with a military uniformity, and with sweep¬ 
ing annihilation of diversity. 

As institutions may be good or bad, so may they 
be favorable or unfavorable to liberty. They may 
indeed give to the representative of the institution 


344 


ON CIVIL LIBERTY 


great freedom, but only for the repression of general 
freedom. The viziersbip is an institution all over 
Asia, and has been so from remote periods, but it is 
an institution in tbe spirit of despotism, and forms 
*an active part of tbe pervading system of Asiatic 
monarchical absolutism. The star chamber was an 
institution, and gave much freedom of action to its 
members, yet the patriots under the Stuarts made 
it their first business to break down this preposterous 
institution. When in 1660 the Danes made their 
king hereditary and absolute, binding him by the 
only oath that he should never allow his or his suc¬ 
cessors’ power to be restricted, the Danish crown 
became undoubtedly a new institution, but assuredly 
not propitious to liberty. Of all the Hellenic tribes 
the Spartans were probably the most institutional, 
but they were communists, and communism is hos¬ 
tile to liberty. They dis-individualized the citizens, 
and, as a matter of course, extinguished in the same 
degree individual liberty, development and pro¬ 
gress. A state in which a citizen could be punished 
because he had added one more to the commonly 
adopted number of lute strings, cannot be allowed 
to have been favorable to liberty. 

Many of those very attributes of the institution 
proper, which make it so valuable in the service of 
liberty, constitute its inconvenience and danger 
when the institution is used against it. It is a bul¬ 
wark, and may protect the enemy of liberty. It is 
‘ like the press. Modern liberty or civilization can¬ 
not dispense with it, yet it may be used as its 
keenest enemy. 


AND SELF-GOVEENMENT. 


345 


CIIAPTEE XXYI. 

THE INSTITUTION, CONTINUED. INSTITUTIONAL LIBEE- 
TY. INSTITUTIONAL LOCAL SELF-GOVERNMENT. 

Civilization, so closely connected with what we 
love in modern liberty, as well as progress and se¬ 
curity, themselves ingredients of civil liberty, stands 
in need of stability and continuity, and these cannot 
be secured without institutions. This is the reason 
why the historian, when speaking of such organizers 
or refounders of their nations as Charlemagne, 
Alfred, Numa, Pelayo, knows of no higher name to 
give them than that of institutors. 

The force of the institution in imparting stability 
and giving new power to what otherwise must 
have swiftly passed away, has been illustrated in our 
own times in mormonism. Every observer who has 
gravely investigated this repulsive fraud will agree 
that as for its pretensions and doctrines it must have 
passed as it came, had it not been for the remarkable 
character which Joseph Smith possessed as an insti- 
tutor.* Thrice blessed is a noble idea, perpetuated in 


* The great ability of this man seems to be peculiarly exhibited 
in his mixture of truth and arrant falsehood, his micompromising 
boldness and insolence, and his organizing instituting mind. Two 




346 


ON CIVIL LIBERTY 


an active institution, as charity in a hotel-dieu; 
thrice cursed, a wicked idea embodied in an institu¬ 
tion. 

The title of institutor is coveted even by those 
who represent ideas the very opposite to institu¬ 
tions. 

Louis Napoleon Bonaparte, when he lately in¬ 
augurated his government, dwelt with pride, or a 
consciousness that the world prizes the founding of 
good institutions as the greatest work of a statesman 
and a ruler, on the “institutions” he had established.^ 


men have met almost simultaneously with great success, in our own 
times—Joseph Smith and Louis Napoleon. Of the two the first 
seems the more clever. He would almost reap all the praises which 
Machiavelli bestows upon the founder of a new empire. And he did it 
against all chances, without any assistance from tradition or prestige. 
Whether he be also the worse of the two will not be hastily pro¬ 
nounced by a careful inquirer. 

2 He meant, of course, the senate, legislative corps, and the council 
of state. Why he calls these new institutions no one else can see, 
but he evidently wishes to indicate his own belief, or desired, that 
others should believe, in their permanency, as well as, perhaps, in 
some degree in their own independent action. To those, however, who 
consider them as nothing more than the pared and curtailed remnants 
of former institutions, who do not see that they can enjoy any inde¬ 
pendent action of their^own, and are aware that their very existence 
depends upon the mere forbearance of the executive; who remember 
their origin by a mere decree of a dictator whose very power by which 
he established them bears witness that he considers himself bound 
by no superior law, and who at anytime may decree their cessation— 
^0 those who know with what studied and habitual sneer “parlia¬ 
mentary governments” are spoken of by the ruling party in France, 
all these establishments appear in principle no more as real insti¬ 
tutions than a tent on a stage, the outpost of an army, or the 
clerk’s office on board of one of our steamboats. 



AND SELF-GOVERNMENT. 


347 


Institutions may not have been viciously conceived, 
or have grown out of a state of violence or crime, 
and yet they may have become injurious in the 
course of time, as incompatible with the pervading 
spirit of the time, or they may have become hollow, 
and in this latter case they are almost sure to be in¬ 
jurious. Hollow institutions in the state are much 
like empty boxes in an ill-managed house. They 
are sure to be filled with litter and rubbish, and to 
become nuisances. But great wisdom and caution 
are necessary to decide whether an institution ought 
to be amputated or not, because it is a notable truth 
in politics that many important institutions and 
laws are chiefly efficient as preventives, not as posi¬ 
tive agents. It is not sufficient, therefore, that at a 
glance we do not discover any palpable good pro¬ 
duced by the institution, to justify us in setting 
about lopping it off Antiquity is prima facie evi¬ 
dence in favor of an institution,^ and must not rashly 
be confounded with obsoleteness; but antiquity is 
certainly no proof against positive and grounded 
arguments. On the other hand, hollow institutions 
have frequently the serious inconvenience of deceiv- 


3 I am aware that many persons believe nowadays so little in 
this truth that not only does antiquity of itself appear to them as 
a proof of deficiency, but they turn their face from the whole 
Past, as something to be shunned, thus forgetting the continuity of 
society, progress and civilization. Mr. Guizot, in his lectures on 
the History of Representative Governments, delivered in Paris, 
1820, found it necessary to warn his hearers against this horror of 
the past. The reader will find remarks on the impossibility of 
“beginning entirely anew,” in my Political Ethics. 




848 


ON CIVIL LIBERTY 


ing and changing the proper venne, as lawyers 
would express it. The form of a representative 
government, without the spirit, true- principles and 
sincere guarantees of self-government in that body, 
or without being founded upon a candid and real 
representation, is worse than a government without 
these forms, because it eases the executive of the re¬ 
sponsibility which without that hollow form would 
wholly rest on it. But here, again, it is necessary to 
observe that an institution may for a time become a 
mere form, and yet that very form may soon be ani- 
‘ mated again by a proper spirit. Parliament under 
Henry the Eighth had become a subservient tool, 
highly noxious because it formally sanctioned many 
atrocious measures of the king. Yet, it was that 
same parliament which rose to action and import¬ 
ance within fifty years, and within a century and a 
half became the virtual seat of government and su¬ 
preme power in the state. There is hardly a species 
of penal trial which has not at times and for an en¬ 
tire period been abused; yet the existence of this 
very trial, intended to rest on the principle of inde¬ 
pendence, became in a better period the starting- 
point of a new order of things. 

We must also mention the fact that there are pe¬ 
rennial and deciduous institutions, or institutions 
avowedly fit only for a preparatory state of civiliza¬ 
tion. Their ofiice is limited in time like that of the 
deciduous teeth, which must be drawn if they do not 
fall out of themselves, or resist too obstinately their 
perennial substitutes. 

We may here close our general remarks on insti- 


AND SELF-GOVERNMENT. 


349 


tutions, and investigate in what the force of the in¬ 
stitution consists, when wisely taken into the service 
of liberty, and in what institutional self-government 
consists in particular. 

By institutional self-government is meant that 
popular government which consists in a great or¬ 
ganism of institutions or a union of harmonizing 
systems of laws instinct with self-government. It is 
essentially of a co-operative or hamacratic character, 
and in this respect the opposite to centralism. It is' 
articulated liberty, and in this regard the opposite to 
an inarticulated government of the majority. It is 
of an inter-guaranteeing, and, consequently, inter- 
limiting character, and in this aspect the negation of 
absolutism. It is of a self-evolving and genetic na- * 
ture, and in this respect is contradistinguished from 
governments founded on extra-popular principles, such 
as divine right. Finally, institutional self-government 
is, in the opinion of our tribe, and according to our 
experience, the only practical self-government, or self-. 
government carried out in the realities of life, and is 
thus the opposite of a vague or theoretical liberty, 
which proclaims abstractions, but, in reality, cannot 
disentangle itself from the despotism of one part over 
another, however permanent or changing the ruling 
part may be. 

Institutional self-government is the political em¬ 
bodiment of self-reliance and mutual acknowledg¬ 
ment of self-rule. It is in this view the political 
realization of equality. 

Institutional self-government is the only self- 
VOL. I.— 30 


350 


ON CIVIL LIBERTY 


government whicli makes it possible to be at once 
seJ/’-government and ^QVl-goveTnment. 

According to the Anglican view, institutional self- 
government consists in tire fact that all the element- 
' ary parts of the government, as well as the highest 
and most powerful branches, consist in real institu¬ 
tions, with all the attributes which have been as¬ 
cribed to an institution in the highest sense of the 
term. It consists, farther, in the unstinted freedom 
and fair protection which are granted to institutions of 
all sorts, commercial, religious, cultural, scientific, 
charitable and industrial to germinate and to grow— 
provided they are moral and do not invade the equal 
rights of others. It receives its aliment from a per¬ 
vading spirit of self-reliance and self-respect—the real 
afflatus of liberty. 

It does not only require that the main functions of 
the government—the legislative, the judicial and the 
executive—be clearly divided, but also that the legis¬ 
lature and the judiciary be bona fide institutions. 
The first French constituent assembly pronounced 
the separation of the three powers, and was obliged 
to do so, since it intended to demolish the absolutism 
which had grown up under the Bourbons; but so 
long as there existed an absolute power, no matter of 
what name, that could dictate, liberty was not yet 
obtained. Indeed, it may be said that a real division 
of power cannot exist, unless the legislature and the 
judiciary form real institutions, in our sense of the 
term. 

These institutions, again, consist of many minor 
institutions, as an organism consists of many minor 


ANT) SELF-GOVEKNMENT. 


351 


ones. Our congress is a real institution, but its com¬ 
ponent parts, the senate and bouse of representatives, 
are its constituent institutions, and the whole is in 
close connection with other real institutions, for in¬ 
stance the state legislatures, or it depends upon other 
institutions, for instance the common law. 

Yet the self-government of our country or of 
England would be considered by ns little more than 
oil floating on the surface of the water, did it consist 
only in congress and the state legislatures with us, 
and in parliament in England. Self-government, to 
be of a penetrative character, requires the institu¬ 
tional self-government of the county or district; it 
requires that everything which, without general in¬ 
convenience, can be left to the circle to which it be¬ 
longs, be thus left to its own management; it consists 
in the presenting grand jury, in the petty jury, in the 
fact that much which is called on the European con¬ 
tinent the administrative branch, be left to the peo¬ 
ple. It requires, in one word, all the local appliances 
of government which are termed local self-govern-^ 
ment;'* and Niebuhr says that British liberty de- 

T. Toulmin Smith’s Local Self-government and Centralization, 
&c. London, 1851. 

A work which many of my readers will peruse with interest and 
instruction is Ferdinand Bdchard’s Lois Municipales des Rdpuh- 
liques de la Swisse et des Etats-Unis, Paris, 1852. Mr. Bechard 
is also the author of a Traits de I’Administration Intdrieure de la 
France—a work which must be welcome to every inquiring citizen, 
because it pictures the details of French centralization, probably 
the most consistently carried out centralization in existence. 

Mr. Bechard uses repeatedly in his French work the English 
term Self-government. 



352 


ON CIVIL LIBERTY 


pends at least as much on these as on parliament, 
and in contradistinction to them he calls the govern¬ 
ments of the continent Staats-Eegierungen (state 
governments, meaning governments directing all de¬ 
tail by the general and supreme power)/ 

It must be in view of this local self-government, 
combined with parliamentary freedom, that sir Ed¬ 
ward Coke said of the Justice of the Peace: “It is 
such a form of subordinate government for the 
tranquillity and quiet of the realm as no part of the 
Christian world hath the like, if the same be duly 
executed.”® 


® A German work, tlie translated title of which is: An Account 
of the Internal Administration of Great Britain, by Baron de Vincke, 
edited by B. G. Niebuhr. Berlin, 1815. Niebuhr, who had spent 
a part of his early manhood in England, published, and probably 
modelled in a great measure, this work in order to influence, if 
possible, the Prussian government, to reorganize the state after 
the expulsion of the French, and to reclaim that kingdom from the 
centralization it had adopted in many respects from the invaders of 
Germany. Niebuhr was a follower and great admirer, of baron de 
Stein, who, when minister of Prussia, had given to the cities some 
degree of self-government by his Stadte-Ordnung—causing not a lit¬ 
tle umbrage to Napoleon. Niebuhr desired to give increased life 
to the principles contained in the Cities’ Charter, when he published 
the work I have mentioned. 

® Coke’s Institutes, part 10, ch. xxi. Justices of the Peace. 
The earl of Strafiford, who, like his royal master, died so well, after, 
politically speaking, having lived so ill, bade his brother, on the 
scaffold, to take this among other messages to his eldest son: 
“ Wish him to content himself to be a servant to his country, as a 
justice of the peace in his county, not aiming at higher prefer¬ 
ment.” May 12, 1641. Rushworth (who was on the scaffold), 
vol. viii. p. 760. George Washington, after having aided in found¬ 
ing a great commonwealth, and after having been twice its chief 



AND SELF-GOVEENMENT. 


853 


Anglican self-government requires that every in¬ 
stitution of local self-government shall have the right 
to pass such by-laws as it finds necessary for its own 
government, without obtaining the consent of any 
superior power, even that of the crown or parliament, 
and that of course such by-laws shall stand good in the 
courts of law, and shall be as binding upon every one 
concerned as any statute or law. I believe that it is in 
the Anglican system of liberty alone, that by-laws are^ 
enacted and have full force without consent of supe¬ 
rior power. There are in other countries exceptions, 
but they are rare indeed, and very limited in power, 
while the by-law is the rule in our system. The 
whole subject of the by-law is characteristic and im¬ 
portant, and stands out like the comprehensive and 
peculiar doctrine of the Anglican warrant. The 
character of self-government is moreover manifested 
by the fact that the right of making by-laws is not 
derived from any grant of superior power, but has 
been ever considered in the English polity as in- ^ 
herent in the local community—a natural right of 
the freemen. Coke says, with reference to these laws 
and their force: “ Of more force is the agreement of 
the folk and people than the grant of the king 
and in another place he says : “ The inhabitants of a 
town, without any custom, may make ordinances or 
by-laws for any such thing which is for the general 


magistrate, was a justice of the peace in his county, in which he 
was imitated by John Adams, and, perhaps, by many of tlie other 
ex-presidents. 

^ 8 Reports, p. 125. 




354 


ON CIVIL LIBERTY 


good of the public,® unless indeed it be pretended 
by any such by-law to abridge the general liberty 
of the people, tlieir inherent birthright, assured to 
all by the common law of the whole land, and which 
that common law, in its jealous regard for liberty, 
does not allow to be abrogated or lessened even by 
their own consent—much less, therefore, by the con¬ 
sent of their delegates in parliament.”^ 

It may be added that by-law does not mean, as 
many suppose, additional law, law by the side of an¬ 
other or complementary, but it means law of the place 
or community, law of the bye or pye, that is of the 
collection of dwellers, or of the settlement as we, in 
America, perhaps would most naturally express it.^° 


s 5 Reports, p. 63. 

9 Ibid. p. 64. 

^9 See Smith’s Local Self-government, page 230. The quota¬ 
tions from Coke to which the three last notes refer are likewise 
in Smith’s work, which I recommend to every reader. 

B}’’, in by-law, is the same syllable with which the names of many 
English places end, such as Derby, Whitby, and is etymologically 
the same with the German Bauen (to build, to settle, to cultivate), 
which is of the same root with the Gothic Bua and Boo, and espe¬ 
cially the frequentative Bygga, aedificare. See Adelung ad verbiim 
Bauen. It is a word which runs through all the Teutonic languages, 
ancient and modern. 

Gradually, indeed, bye-laws came to signify laws for a limited 
circle, a small society, laws which any set of men have the right to 
pass for themselves within and under the superior law, charter, 
&c., which constitutes them into a society, and thus it happened 
that bye-law was changed into by-law, as we have by-ways, roads 
by the side of others. It cannot be denied that by-law at present 
is used in the sense of law passed by the side, as it were, of 
another and main law. Very few persons know of the origin, 
and the present sense of by-law is doubtless that of collateral. 



AND SELF-GOVERNMENT. 


355 


expletive or subordinate law. Such double derivations are notun- 
common in our language. The scholar is probably reminded, by 
this note, of the term God, which we Christians derive from good, 
and a better, holier derivation, as to the sense of the word, we 
cannot give to it; yet the historical derivation, the verbal etymology 
if I might so say, is an entirely different one. See Jacob Grimm’s 
German Mythology, ad verbum Gott. The starting-point of adora¬ 
tion is, with all tribes, dread, acknowledgment of superior power; 
then follows acknowledgment of wisdom, and last of all acknow¬ 
ledgment of goodness, purity, holiness. 


c 


END OF VOL. I. 



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